McAllister v. Maritime Employers Assn.
T-1357-98 / T-1383-98
Teitelbaum J.
15/7/99
28 pp.
Judicial review of CHRC's dismissal of complaints against respondents, decision not to appoint Human Rights Tribunal-In 1994 respondent unions signing collective agreement providing for mandatory retirement at age 65, subject to certain exceptions-At time collective agreement signed, applicant McAllister age 65 and applicant Lawson age 77-As result of agreement, respective employment terminated on December 31, 1994 on account of age-Filing complaints of age discrimination-CHRC dismissing complaints based on results of investigative report concluding applicants reached normal age of retirement within CHRA, s. 15(c), providing not discriminatory practice if individual's employment terminated because individual reached normal age of retirement for employees working in positions similar to position of individual-Application for judicial review allowed on ground materials investigator must have relied on in making statements about retirement age, enforcement practices at other ports, should have been provided to applicants-Court ordering parties be given access to Commission's record, may adduce such further evidence as considering necessary-In June 1998 applicants' complaints again dismissed on ground age 65 normal retirement age-Issues herein: (1) whether CHRC exceeding jurisdiction, erring in law in disregarding, misapprehending evidence before it; (2) whether CHRC failing to observe fundamental principles of natural justice in denying applicants opportunity to cross-examine respondents with respect to evidence submitted by them in response to applicants' complaints-Application dismissed-(1) As s. 15(c) exception to general rule prohibiting dismissal because of age, evidence should be such that CHRC fully satisfied, after thorough investigation, as to normal age of retirement in occupation of applicants-Analysis of documents before CHRC when made decisions regarding complaints satisfying Court both sides clearly expressed arguments to CHRC before decision-Applicants submitting collective agreements representing large number of locals, providing right to work beyond age 65-Nevertheless, some other documents providing evidence age 65 normal age of retirement for steamship checkers and longshoremen in Newfoundland's ports-Before 1994 collective agreement, no mandatory retirement at age 65, employees having right to work beyond age 65, but not meaning normal age of retirement not 65-Appearing from documents before CHRC when made decision, that generally 65 frequently used as normal age of retirement-Having regard to Holmes v. Canada (Attorney General) (1999), 242 N.R. 148 (F.C.A.) wherein held Commission having very wide latitude when exercising screening functions, and evidence before Court, CHRC not erring in fact, law-Following wording of s. 15(c), exception referring to "normal age of retirement" for employees working in positions similar to position of that individual-Significant difference between "normal" age of retirement, "mandatory" age of retirement-That employees not prohibited from working past age 65 not rendering unreasonable CHRC's decision finding age 65 normal age of retirement-CHRC in best position to appreciate facts, circumstances surrounding complaint before sending it to HRT-No reviewable error in CHRC's decision-(2) Applicants contending CHRC obliged to conduct oral hearing to afford applicants opportunity to cross-examine respondents' representative-Applicants received investigator's report, had opportunity to respond-With respect to s. 44(3)(b) (requiring Commission to dismiss complaint if satisfied having regard to all circumstances of complaint, inquiry not warranted), CHRC respected standard of procedural fairness-CHRC under no obligation to permit cross-examination of respondents' representative-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 15(c), 44(3)(b) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64).