University of Regina v. Kly et al., 2011 SKQB 93

• Judge: Zarzeczny, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 25, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 93;(2011), 370 Sask.R. 51 (QB)

Regina Univ v. Kly (2011), 370 Sask.R. 51 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MR.027

The University of Regina (applicant) v. Dr. Yussef Kly (respondent) and The University of Regina Faculty Association (respondent) and The Saskatchewan Human Rights Commission and the Saskatchewan Human Rights Tribunal (respondents)

Saskatchewan Department of Environment Government of Saskatchewan (applicant) v. David Seymour (respondent) and Sheila Denysiuk, Tribunal Member Saskatchewan Human Rights Tribunal (respondent)

(2010 Q.B.G. No. 2014; 2011 SKQB 93)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Zarzeczny, J.

February 25, 2011.

Summary:

Kly was a tenured faculty member at the University of Regina. Seymour was a pilot employed by the Saskatchewan Department of Environment. Kly and Seymour filed complaints with the Saskatchewan Human Rights Commission alleging discrimination on the basis of age where they were subject to mandatory retirement after attaining the age of 65. The Chief Commissioner of the Commission declined to refer the complaints to a tribunal for hearing. Kly and Seymour sought a review of that decision by a tribunal member. Tribunal member Lepage ordered that an inquiry be held into the Kly Complaint. Tribunal member Denysiuk ordered that an inquiry be held into the Seymour complaint. The Government of Saskatchewan applied for judicial review of the Denysiuk decision. The University of Saskatchewan applied for judicial review of the Lepage decision.

The Saskatchewan Court of Queen's Bench allowed the applications and quashed the decisions.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - Kly was a tenured faculty member at the University of Regina - Seymour was a pilot employed by the Saskatchewan Department of Environment - Kly and Seymour filed complaints with the Saskatchewan Human Rights Commission alleging discrimination on the basis of age where they were subject to mandatory retirement after attaining the age of 65 - Kly's complaint was filed on April 23, 2003 - Seymour's complaint was filed on May 17, 2004 - Since the Saskatchewan Human Rights Code did not prohibit mandatory retirement at that time, Seymour's complaint was regarded and treated as raising or implicating the provisions of s. 15(1) of the Charter prohibiting discrimination on the basis of age - Tribunal member Lepage ordered that an inquiry be held into the Kly Complaint - Tribunal member Denysiuk ordered that an inquiry be held into the Seymour complaint - The Government of Saskatchewan and the University of Saskatchewan applied for judicial review of those decisions - The Saskatchewan Court of Queen's Bench allowed the applications - The standard of review was correctness - The Lepage and Denysiuk decisions were not correct and constituted reviewable and reversible error - The conclusion reached by Lepage and Denysiuk ignored or failed to apply the decisions of the Saskatchewan Court of Queen's Bench in the Carlson and Leeson cases which raised these very same issues and arguments - It also disregarded the continuing effect of the decision in McKinney v. University of Guelph (S.C.C.) which the Supreme Court of Canada had not had occasion to reverse or repudiate.

Civil Rights - Topic 5658.1

Equality and protection of the law - Particular cases - Mandatory retirement - [See Civil Rights - Topic 995 ].

Civil Rights - Topic 7069.02

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Decision to request board of inquiry - [See Civil Rights - Topic 995 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Civil Rights - Topic 995 ].

Cases Noticed:

Leeson et al. v. University of Regina et al. (2007), 301 Sask.R. 316; 2007 SKQB 252, refd to. [para. 15].

Human Rights Commission (Sask.) et al. v. Saskatoon Public Library Board et al. (2008), 325 Sask.R. 224; 2008 SKQB 312, refd to. [para. 16].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 23].

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, refd to. [para. 30].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 39].

Counsel:

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

Merrilee D. Rasmussen, Q.C., for Dr. Yussef Kly (observing only);

Thomas J. Waller, Q.C., for the University of Regina Faculty Association;

Colleen M. Matthews, for Saskatchewan Department of Environment;

Merrilee D. Rasmussen, Q.C., for David Seymour.

This application was heard before Zarzeczny, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 25, 2011.