Leeson et al. v. University of Regina et al.,

• Jurisdiction: Saskatchewan
• Judge: Laing
• Neutral Citation: 2007 SKQB 252
• Citation: (2007), 301 Sask.R. 316 (QB),2007 SKQB 252,301 SaskR 316,(2007), 301 SaskR 316 (QB),301 Sask.R. 316
• Date: 16 July 2007
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Leeson v. Regina Univ. (2007), 301 Sask.R. 316 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. SE.021

Dr. Howard Leeson and Dr. Herbert Korté (applicants) v. University of Regina (respondent) and Government of Saskatchewan (respondent)

(2007 Q.B.G. No. 855; 2007 SKQB 252)

Indexed As: Leeson et al. v. University of Regina et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Laing, C.J.Q.B.

July 16, 2007.

Summary:

The two applicants were tenured faculty members of the University of Regina who had reached the age of 65 and were required by the collective agreement to retire effective June 30, 2007. On May 17, 2007, the Saskatchewan government passed a bill to amend the Saskatchewan Human Rights Code to remove the upper limit of age 65 in the definition of "age". However, the legislation was not to come into force until six months later on November 17, 2007. The applicants sought a declaration that the existing definition of "age" in the Code infringed s. 15 of the Charter and was not a justifiable limit under s. 1 of the Charter.

The Saskatchewan Court of Queen's Bench dismissed the application.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - [See Civil Rights - Topic 8582 ].

Civil Rights - Topic 8582

Canadian Charter of Rights and Freedoms - Practice - Charter application - Grounds for precluding - The two applicants were tenured faculty members of the University of Regina who had reached the age of 65 and were required by the collective agreement to retire effective June 30, 2007 - On May 17, 2007, the Saskatchewan government passed a bill to amend the Saskatchewan Human Rights Code to remove the upper limit of age 65 in the definition of "age" - However, the legislation was not to come into force until six months later on November 17, 2007 - The Saskatchewan Court of Queen's Bench dismissed the application - The court stated that if it were to rule that the definition of "age" in the Code was unconstitutional on the date that the application was filed (June 12, 2007), such a decision would, in effect, negate the implementation date of November 17, 2007, selected by the legislature - The court stated that it would, in effect, be using the Charter to second-guess legislative judgment, which it declined to do - See paragraphs 9 to 12.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The applicants sought a declaration that the existing definition of "age" in the Saskatchewan Human Rights Code infringed s. 15 of the Charter and was not a justifiable limit under s. 1 of the Charter - The respondents opposed the application, arguing that the applicants invoked the wrong procedure for determination of the issue in proceeding by motion rather than commencing an action by statement of claim - The Saskatchewan Court of Queen's Bench commented that when one considered rule 5(4), which stated that a proceeding should not be set aside solely because the wrong commencement document was employed, it was difficult to maintain that a party applying for relief pursuant to s. 24(1) of the Charter had to issue a statement of claim - The court stated that "the better view is that, if the motion cannot be determined on the basis of affidavits, the discretion exists under the Rules for the court to order the applicant at that point to prepare a statement of claim which would invoke all of the rules associated with an action or, alternatively, if issues can be defined without doing injustice to any party, that the matter be set down for the trial of such issues" - See paragraphs 13 to 16.

Cases Noticed:

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. 3].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161; 255 D.L.R.(4th) 633 (C.A.), refd to. [para. 9].

R. v. Beare; R. v. Higgins (1987), 56 Sask.R. 173; 40 D.L.R.(4th) 600 (C.A.), refd to. [para. 14].

Waskewitch v. Hastings et al. (1999), 184 Sask.R. 79; 1999 SKQB 14, refd to. [para. 15].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385; 43 C.R.R. 1; [1989] 6 W.W.R. 351, refd to. [para. 15].

Counsel:

Merrilee D. Rasmussen, Q.C., for the applicants;

Erin M.S. Kleisinger, for the University of Regina;

Ross W. Macnab, for the Government of Saskatchewan.

This application was heard before Laing, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on July 16, 2007.