French v. Dalhousie University, 2012 NSSC 394

• Judge: Muise, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 21, 2011
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 394;(2012), 323 N.S.R.(2d) 150 (SC)

French v. Dalhousie Univ. (2012), 323 N.S.R.(2d) 150 (SC);

    1025 A.P.R. 150

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.007

Andrew French (applicant) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia and Dalhousie University (respondents)

(Hfx. No. 334802; 2012 NSSC 394)

Indexed As: French v. Dalhousie University

Nova Scotia Supreme Court

Muise, J.

November 26, 2012.

Summary:

The collective agreement between Dalhousie University and its faculty association required professors to retire at age 65. French, forced to retire at age 65 in July 2008, filed a discrimination complaint. At that time, s. 6(h) of the Human Rights Act provided that mandatory retirement due to a bona fide mandatory retirement plan did not constitute discrimination. Legislation to repeal s. 6(h) was enacted in 2007, but not proclaimed in force until July 2009. French claimed that the mandatory retirement plan was not bona fide. He did not challenge the constitutionality of s. 6(h) as violating the Charter. The Human Rights Commission dismissed the complaint without referring it to a Board of Inquiry, finding that there was no reasonable likelihood that an investigation would reveal evidence of discrimination contrary to the Act. French applied for judicial review and, for the first time, challenged the constitutionality of s. 6(h). At issue was whether the court should determine a Charter issue not previously raised and, if so, whether the Commission erred in not finding s. 6(h) contrary to the Charter. Finally, French argued that the Commission erred in law in not referring the complaint to a Board of Inquiry for investigation.

The Nova Scotia Supreme Court, in a judgment reported at 323 N.S.R.(2d) 133; 1025 A.P.R. 133, dismissed the application. Applying the reasonableness standard of review, the Commission did not err in finding no reasonable likelihood of an investigation revealing evidence of discrimination on the basis that the forced retirement was excepted from discrimination on the ground that there was a bona fide mandatory retirement plan. The court declined to consider the constitutionality of s. 6(h), as it was not raised before the Commission. Further, it was reasonable for the Commission to treat s. 6(h) as constitutionally valid and not refer the matter to a Board of Inquiry. In August 2010, after s. 6(h) had been repealed, French applied for an order declaring s. 6(h) invalid for violating equality rights under s. 15 of the Charter.

The Nova Scotia Supreme Court dismissed the application. First, since s. 6(h) was repealed by the time French's application was commenced, the issue of constitutional validity was moot. Applying the Borowski factors, this was not an appropriate case to determine the constitutionality of s. 6(h) notwithstanding the issue was moot. In any event, the court would not have retroactively invalidated s. 6(h). When French was mandatorily retired, the court was bound by McKinney v. University of Guelph (SCC) to determine that mandatory retirement violated equality rights, but was a reasonable limit prescribed by law under s. 1. Accordingly, the court could not retroactively declare s. 6(h) to be constitutionally invalid. The court noted that McKinney found that "the courts should not lightly use the Charter to second guess legislative judgment as to how quickly it should proceed in moving towards the ideal of equality".

Civil Rights - Topic 5658.1

Equality and protection of the law - Particular cases - Mandatory retirement - The collective agreement between Dalhousie University and its faculty association required professors to retire at age 65 - French, forced to retire at age 65 in July 2008, filed a discrimination complaint - At that time, s. 6(h) of the Human Rights Act provided that mandatory retirement due to a bona fide mandatory retirement plan did not constitute discrimination - Legislation to repeal s. 6(h) was enacted in 2007, but not proclaimed in force until July 2009 - French claimed that the mandatory retirement plan was not bona fide, but did not challenge the constitutionality of s. 6(h) - The Human Rights Commission dismissed the complaint without referring it to a Board of Inquiry, finding that there was no reasonable likelihood that an investigation would reveal evidence of discrimination contrary to the Act - French applied for judicial review and, for the first time, challenged the constitutionality of s. 6(h) - The judicial review application was dismissed - In August 2010, after s. 6(h) had been repealed, French applied for an order declaring s. 6(h) invalid for violating equality rights under s. 15 of the Charter - The Nova Scotia Supreme Court dismissed the application - First, since s. 6(h) was already repealed when French's application was commenced, the issue of constitutional validity was moot - Applying the Borowski factors, this was not an appropriate case to determine the constitutionality of s. 6(h) notwithstanding the issue was moot - In any event, the court would not have retroactively invalidated s. 6(h) - When French was mandatorily retired, the court was bound by McKinney v. University of Guelph (SCC) to determine that mandatory retirement violated equality rights, but was a reasonable limit prescribed by law under s. 1 - Accordingly, the court could not retroactively declare s. 6(h) to be constitutionally invalid - The court noted that McKinney found that "the courts should not lightly use the Charter to second guess legislative judgment as to how quickly it should proceed in moving towards the ideal of equality" - See paragraphs 17 to 123.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity and retroactivity) - [See Civil Rights - Topic 5658.1 ].

Civil Rights - Topic 8372.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Limits on retroactivity - [See Civil Rights - Topic 5658.1 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 5658.1 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Civil Rights - Topic 5658.1 ].

Cases Noticed:

University of Regina v. Kly et al. (2011), 370 Sask.R. 51; 2011 SKQB 93, dist. [para. 24].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 25].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 27].

Bell v. Canadian Human Rights Commission - see Cooper v. Canadian Human Rights Commission.

Workers' Compensation Board (N.S.) v. Martin et al. (2003), 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 30].

Québec (Procureure générale) v. Québec (Commission des droits de la personne et des droits de la jeunesse), [2000] J.Q. No. 1681 (C.S.), refd to. [para. 33].

Board of Education of Saskatoon School Division No. 13 et al. v. Human Rights Commission (Sask.) et al. (1998), 167 Sask.R. 184 (Q.B.), refd to. [para. 33].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2012), 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, affing. (2010), 287 N.S.R.(2d) 329; 912 A.P.R. 329; 2010 NSCA 8, refd to. [para. 36].

R. v. Ferguson (M.E.) (2008), 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 42].

Hislop et al. v. Canada (Attorney General) (2007), 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 42].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 75].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 81].

Leeson et al. v. University of Regina et al. (2007), 301 Sask.R. 316; 2007 SKQB 252, refd to. [para. 85].

Human Rights Commission (Sask.) et al. v. Saskatoon Public Library Board et al. (2008), 325 Sask.R. 224; 2008 SKQB 312, refd to. [para. 85].

Nova Scotia Construction Safety Association et al. v. Human Rights Commission (N.S.) et al. (2006), 244 N.S.R.(2d) 321; 774 A.P.R. 321; 2006 NSCA 63, refd to. [para. 91].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 92].

Bedford et al. v. Canada (Attorney General) et al. (2012), 290 O.A.C. 236; 2012 ONCA 186, refd to. [para. 97].

Borowski v. Minister of Justice and Minister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 100].

Authors and Works Noticed:

Hansard - see Nova Scotia, Hansard, Legislative Debates.

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 2, p. 672 [para. 78].

Nova Scotia, Hansard, Legislative Debates, 60th Assembly, 1st Sess (April 3, 2007), p. 4200 [para. 51].

Nova Scotia, Hansard, Legislative Debates, 60th Assembly, 1st Sess (April 12, 2007), p. 4761 [para. 51].

Counsel:

Brian Casey, for Andrew French;

Edward A. Gores, Q.C., for the Attorney General;

Rebecca Saturley, for Dalhousie University.

This application was heard on November 21, 2011, at Halifax, N.S., before Muise, J., of the Nova Scotia Supreme Court, who delivered the following judgment on November 26, 2012.