Canada ( Attorney General ) v. Martin
A-72-94
Hugessen J.A.
18/3/97
3 pp.
Appeal from Trial Division decision ([1994] 2 F.C. 524) dismissing application for judicial review of Human Rights Tribunal finding compulsory retirement age of Canadian Forces discriminatory practice and ordering compensation to number of compulsorily retired respondents-Appeal dismissed-Neither Tribunal nor Trial Judge erred in ways so as to require intervention-No error in view relevant provisions of Queen's Regulations and Orders requiring compulsory retirement not regulations for purposes of Canadian Human Rights Act (CHRA), s. 15(b)-Provisions in place prior to adoption of CHRA and nothing in their texts suggesting Governor in Council had in mind exception to human rights legislation at time of adoption-Pacific Pilotage Authority v. Arnison, [1981] 2 F.C. 206 (C.A.) not viewed as authority to contrary to be followed-Suggestion 7 of 10 complainants not in fact retired for reasons of age not accepted-Fact they failed to meet transitional criteria based on merit, rank and occupation irrelevant as each compulsorily retired at compulsory retirement age (CRA) then applicable and would not have been so retired if Regulation had not existed-Use of non-discriminatory standards to select those who will not be discriminated against not eliminating discrimination-Neither Tribunal nor Trial Judge committed reviewable error of law of nature to vitiate conclusions-Finding CRA not bona fide occupational requirement under CHRA largely one of fact; right questions asked and evidence supporting answers-Tribunal's view Canadian Forces could put in place system of testing as reasonably practical alternative to CRA for meeting safety requirements of Forces not one to be interfered with-Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(b)-Queen's Regulations and Orders for the Canadian Forces (1968 Revision).