McAllister v. Maritime Employers Association et al., (1999) 172 F.T.R. 161 (TD)

• Judge: Teitelbaum, J.
• Court: Federal Court (Canada)
• Case Date: May 11, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 172 F.T.R. 161 (TD)

McAllister v. MEA (1999), 172 F.T.R. 161 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. AU.053

Wendell McAllister (applicant) v. Maritime Employers Association and Port of Saint-John Employers Association Inc. (respondents) and Steamship Checkers and Cargo Repairmen, Weighers and Samplers of the Port of Saint-John, Local 1764, International Longshoreman's Association (respondent)

(T-1357-98)

Charles Lawson (applicant) v. Maritime Employers Association and Port of Saint- John Employers Association Inc. (respondents) and Steamship Checkers and Cargo Repairmen, Weighers and Samplers of the Port of Saint-John, Local 1764, International Longshoreman's Association (respondent)

(T-1383-98)

Indexed As: McAllister v. Maritime Employers Association et al.

Federal Court of Canada

Trial Division

Teitelbaum, J.

July 15, 1999.

Summary:

Two employees filed complaints of age discrimination because they were forced to retire under a collective agreement.

The Canadian Human Rights Commission dismissed the employees' complaints without a hearing before the Tribunal based on an investigator's report, which concluded that the employees had reached the normal age of retirement (Canadian Human Rights Act, s. 15(1)(c)). The two employees applied for judicial review.

The Federal Court of Canada, Trial Divi­sion, allowed the application and remitted the matter for determination because the investigator did not provide to the employees all the material he relied on regarding the retirement age and enforcement practices at other ports.

The Canadian Human Rights Commission dismissed the application without a hearing. The employees applied for judicial review, asserting that the Commission (1) exceeded its jurisdiction in disregarding or misappre­hending evidence and (2) breached the stan­dard of procedural fairness by not requiring an oral hearing by the Human Rights Tribu­nal and by not giving the employees an opportunity to cross-examine the respon­dents' representative on his affidavit.

The Federal Court of Canada, Trial Divi­sion, dismissed the application.

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - [See Civil Rights - Topic 7042 ].

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - Two Steamship Checkers filed complaints of age discrimi­nation regarding forced retirement under a collective agreement - The Canadian Human Rights Commission dismissed the complaints based on an investigator's report, which concluded that the employees had reached the normal age of retirement (Canadian Human Rights Act, s. 15(1)(c)) - The employees applied for judicial review - The Federal Court of Canada, Trial Division, held that given the docu­ments before the Commission, the normal age of retirement was 65 - The fact that the employees were not prohibited from working past age 65 before the collective agreement did not render the Commis­sion's decision finding that 65 was the normal age or retirement unreasonable - See paragraphs 55 to 71.

Civil Rights - Topic 7042

Federal or provincial legislation - Commis­sions or boards - General - Right to tribu­nal - Two Steamship Checkers filed com­plaints of age discrimination regarding forced retirement under a collective agree­ment - The Canadian Human Rights Com­mission dismissed the complaints based on an investigator's report, concluding that the employees had reached the normal age of retirement (Canadian Human Rights Act, s. 15(1)(c)) - The employees applied for judicial review, asserting, inter alia, that they were entitled to an oral hearing before the Tribunal - The Federal Court of Canada, Trial Division, held that an oral hearing was not necessary - On an age discrimination complaint, the Commission must be completely satisfied, after review­ing the investigator's report, that the com­plainant had reached the normal age of retirement for employees working in posi­tions similar to the complainant's position - See paragraphs 58 to 68.

Civil Rights - Topic 7046

Federal or provincial legislation - Commis­sions or boards - General - Duty of fair­ness - [See Civil Rights - Topic 7042 ].

Words and Phrases

Norm - The Federal Court of Canada, Trial Division, discussed the meaning of the word "norm" in regards to the phrase "normal age of retirement" for employees under s. 15(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

Cases Noticed:

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, consd. [para. 18, footnote 1].

Canadian National Railway Co. v. Prior (1983), 83 C.L.L.C. 17,013 (Can. Hum. Rts. Rev. Trib.), refd to. [para. 31, foot­note 2].

Dickason and Human Rights Commission (Alta.) v. University of Alberta (1992), 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241 (S.C.C.), refd to. [para. 35, footnote 3].

Cashin v. Canadian Broadcasting Corp. and Canadian Human Rights Commission (1985), 55 N.R. 112 (F.C.A.), refd to. [para. 52, footnote 4].

Slattery v. Canadian Human Rights Com­mission, [1994] 2 F.C. 574; 73 F.T.R. 161 (T.D.), refd to. [para. 5].

Holmes v. Canada (Attorney General of Canada) et al. (1999), 242 N.R. 148 (F.C.A.), refd to. [para. 56, footnote 6].

Slattery v. Canadian Human Rights Com­mission (1997), 205 N.R. 383 (F.C.A.), refd to. [para. 74, footnote 7].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 75].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. s. 15(1)(c) [para. 8]; sect. 43, sect. 44, [para. 53]; sect. 49 [para. 49].

Authors and Works Noticed:

Oxford Shorter Dictionary [para. 69].

Counsel:

C. Lahey, for the applicant, McAllister;

H. Colwell, for the applicant, Lawson;

T. Wilson, for the respondent, Steamship Checkers and Cargo Repairmen and Samplers of the Port of Saint John, Local 1764;

J. Barry and M. Wirvin, for the respon­dent, Maritime Employers Association.

Solicitors of Record:

Stewart McKelvey Stirling Scales, Saint John, New Brunswick, for the applicant, McAllister;

Harry Colwell, Saint John, New Bruns­wick, for the applicant, Lawson;

Theordore E. Wilson, Saint John, New Brunswick, for the respondent, Steamship Checkers and Cargo Repairmen and Samplers of the Port of Saint John, New Brunswick, Local 1764;

Barry & O'Neil, Saint John, New Bruns­wick, for the respondent, Maritime Employers Association.

This application was heard in Saint John, New Brunswick, on May 11, 1999, before Teitelbaum, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on July 15, 1999, in Vancouver, British Columbia.