A-263-82
A-803-82
Roderick Ross Stevenson (Applicant)
v.
Canadian Human Rights Commission, Air Canada
and Rollie E. Cook and Norman J. Foster on their
own behalf and on behalf of all members of the
Canadian Air Line Pilots Association (Respond-
ents)
Court of Appeal, Thurlow C.J., Heald J. and
McQuaid D.J.-Toronto, June 21; Ottawa, Sep-
tember 8, 1983.
Bill of Rights - Equality before the law - Policy of airline
and union requiring pilots to retire at age 60 - Human Rights
Act s. 14(c) not violating Bill s. 1(b) guarantee of equality by
restricting protection against job-related age discrimination to
persons below normal age of retirement - Onus on applicant
to prove discriminatory statute denies equality before law
S. 14(c) enacted in pursuit of valid federal objective - S. 14(c)
distinction not arbitrary or unnecessary - Bill may be con
travened even where no discrimination based on ground speci
fied in s. 1 - Bill not conferring right against age discrimina
tion - Court may not impose its judgment in negation of
Parliament's enactment - Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 3, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 -
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 1(b) -
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 15 - Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 - Federal Aviation Administration Regu
lations, 14 CFR (U.S.) - Convention on International Civil
Aviation (opened for signature December 7, 1944), CTS 1944/
36, pp. 34-56; 15 UNTS 295, Annex 1 (adopted April 14,
1948).
Human Rights - Age discrimination - Policy of airline
and union requiring pilots to retire at age 60 - Human Rights
Act s. 14(c) not violating Bill of Rights s. 1(b) guarantee of
equality before law by restricting protection against job-relat
ed age discrimination to persons below normal age of retire
ment - S. 14(c) enacted in pursuit of valid federal objective
- S. 14(c) distinction not arbitrary or unnecessary - Whether
s. 14(c) exception applies to Act s. 10 and so excuses union
Scope of ss. 9, 10 - Right against age discrimination con
ferred by Act not Bill - Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 3, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 -
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 1(b)
Federal Aviation Administration Regulations, 14 CFR (U.S.)
- Convention on International Civil Aviation (opened for
signature December 7, 1944), CTS 1944/36, pp. 34-56; 15
UNTS 295, Annex 1 (adopted April 14, 1948).
Aeronautics — Policy of airline and union requiring pilots
to retire at age 60 — Permissible since Human Rights Act s.
14(c) states no discriminatory practice if employment ter
minated because individual "has reached the normal age of
retirement" — S. 14(c) not violating Bill of Rights s. 1(b)
guarantee of equality before law — S. 14(c) distinction not
arbitrary or unnecessary — Normal retirement age in aviation
industry — Aviation safety — Canadian Human Rights Act,
S.C. 1976-77, c. 33, ss. 3, 7, 9, 10, 14 — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, s. 1(b) — Federal Aviation
Administration Regulations, 14 CFR (U.S.) — Convention on
International Civil Aviation (opened for signature December 7,
1944), CTS 1944/36, pp. 34-56; 15 UNTS 295, Annex l
(adopted April 14, 1948).
The applicant was a pilot employed by Air Canada. He was
also a member of the Canadian Air Line Pilots Association
(CALPA), the bargaining agent for that airline's pilots. Air
Canada had a policy and practice of requiring its pilots to retire
when they reached the age of 60 years. CALPA favoured this
policy. Indeed, five months prior to the applicant's sixtieth
birthday, Air Canada and CALPA incorporated the airline's
pension plan into their collective agreement, thereby incor
porating the retirement-at-60 rule which the plan included.
When his sixtieth birthday arrived, the applicant was suffer
ing no deficiency of health which would have impaired his
ability to continue working as a pilot. Nonetheless, he was
retired by Air Canada at that time.
Nine months earlier, the applicant had filed two complaints
with the Canadian Human Rights Commission, against Air
Canada and CALPA, respectively. He alleged that the airline
and CALPA had discriminated on the basis of age, and in so
doing had violated the provisions of the Canadian Human
Rights Act. Both complaints were dismissed, on the ground
that Air Canada's policy of compulsory retirement at age 60
came within the terms of paragraph 14(c) of the Act, which
provides that it is not a discriminatory practice to terminate an
individual's employment "because that individual has reached
the normal age of retirement".
The applicant applied to the Court of Appeal to have the
decisions of the Commission set aside. He contended, inter alia,
that paragraph I 4(c) infringed the right to equality before the
law assured him by paragraph 1(b) of the Bill of Rights.
Held (Thurlow C.J. dissenting in part), the applications
should be dismissed.
Per Heald J.: Age discrimination is not expressly prohibited
by the Bill of Rights. However, even where a federal statute
does not discriminate on one of the bases expressly mentioned
in section 1 of the Bill, it will nevertheless be in contravention
of the Bill if it abrogates any of the rights or fundamental
freedoms listed in that section.
The applicant has argued that the test which should be
applied to determine whether there is a denial of equality
before the law is the one propounded in MacKay v. The Queen
by Mr. Justice McIntyre—namely: Is the inequality created by
the impugned legislation arbitrary, capricious or unnecessary,
or is it instead rationally based and acceptable in that it is a
variation from the principle of universal application of law
which is required in order to meet special conditions and to
attain a necessary and desirable social objective? This test,
though, differs from the test enunciated by Ritchie J., who
spoke for the majority in MacKay. According to Mr. Justice
Ritchie, the party who impeaches legislation must establish
that, in enacting the legislation, Parliament was not seeking to
achieve a valid federal objective. The applicant herein has not
discharged this burden.
Even if the test applied were the one set forth by McIntyre
J., paragraph 14(c) still would not be adjudged offensive. It was
submitted by the applicant that paragraph 14(c) arbitrarily
denies those employees who have reached "the normal age of
retirement" protection against age discrimination. However, as
was said by Pratte J. in Attorney General of Canada v. Bliss,
the distinction which an enactment makes between individuals
is a relevant distinction—and thus one which does not violate
the right to equality before the law—if "there is a logical
connection between the basis for the distinction and the conse
quences that flow from it". In the case of the distinction made
by paragraph 14(c), such a logical connection does exist. The
retirement of airline pilots at the age of 60 is accepted as the
norm by much of the Canadian aviation industry, and in other
quarters as well. In the opinion of CALPA, a policy of requir
ing retirement at that age is consistent with existing medical
knowledge. Although such a policy does not have regard to
differences among individuals vis-Ã -vis their capabilities at
retirement age, the only alternative would be to allow pilots to
continue flying until they demonstrate incompetence—an
approach which would be inimical to aviation safety and there
fore to the public interest.
With respect to his complaint against CALPA, the applicant
maintained that paragraph 14(c) does not except conduct from
the category of "discriminatory practice" where the discrimina
tory practice alleged is one defined by section 10 of the Human
Rights Act. He contended that while section 7 of the Act deals
with the same subject-matter as does paragraph 14(c), there is
no such link between section 10 and paragraph 14(c). This,
however, is incorrect. Paragraph 10(b) is concerned with "an
agreement affecting ... any ... matter relating to employ
ment", and termination of employment, which is what para
graph 14(c) addresses, is clearly a matter of that kind.
It was also argued that by going along with Air Canada's
retirement policy, CALPA itself established or pursued a policy
or practice which deprived or tended to deprive the applicant of
employment as a pilot, and thereby ran afoul of paragraph
10(a). But this argument too is unacceptable. As long as it is
the objective fact that the individual's employment ceases
because s/he has reached the normal age of retirement, para
graph 14(c) is called into play. It then provides an exception in
respect of both section 7 and all parts of section 10, and
protects both employer and union from censure under the latter
provision. That a union would be held to have acted improperly
while an employer who engaged in similar conduct would be
excused, is a result which Parliament could not have intended.
Per McQuaid D.J.: Section 9 of the Act has no application in
the case at bar. That section is directed only to a union's
internal relations with its members, and to the union's internal
policies or by-laws.
Nor is section 10 a relevant provision. It is not addressed to a
retirement situation, but instead deals with the procedures and
practices of the initial hiring, and with matters attendant upon .
hiring. The words "any other matter relating to employment or
prospective employment", in paragraph 10(b), should be read
ejusdem generis with the words immediately preceding them.
Section 7 does not confer upon any citizen an absolute
protection from any act of discrimination. A number of other
sections of the Act begin by declaring in absolute terms that
certain conduct is a discriminatory practice, but proceed to
qualify this characterization by exempting some activity from
it. Similarly, section 7 states a principle, and then paragraph
14(c) sets forth one of the limits whereby section 7 is circum
scribed. The unqualified nature of the statement in section 7,
like that of the initial declarations in the other provisions,
should not be taken as a basis for holding the subsequent
qualification to be inoperative.
Even if paragraph 14(c) could be construed as creating two
separate groups, it would not necessarily be invalid as a result.
Legislation which makes such a distinction will be deemed
offensive only if the person who attacks it can establish that, in
enacting it, Parliament was not seeking to achieve a valid
federal objective. In this regard, the MacKay case suggests
three questions which should be asked of discriminatory legisla
tion. Is the distinction which the legislation makes reasonable
and relevant? Is the distinction rationally based rather than
capricious and arbitrary? Is the legislation's deviation from
the norm of universality of application reasonably necessary in
order to meet special conditions and attain a necessary, desir
able social objective? If the answer to each of these queries is
affirmative, then a valid federal objective is involved, and any
differentiation contained in the legislation is not incompatible
with the Bill of Rights.
Unquestionably, paragraph 14(c) does create two distinct
groups; yet the grouping brought about by the establishment of
a normal age of retirement is, as it applies to the applicant,
reasonable, relevant, and necessary for the attainment of a
desirable social objective. That objective is to effect the orderly
retirement of senior workers from the labour force, with dignity
and some degree of financial security, while at the same time
providing an opportunity for those below the retirement age to
advance in their occupational fields and contribute to the
betterment of society.
Per Thurlow C.J. (dissenting in part): Section 1 of the Bill of
Rights is not rendered inapplicable to this case by the fact that
the section does not identify age as a prohibited ground of
discrimination; nevertheless, the Bill by itself does not confer
any legal right not to be discriminated against on the basis of
age in respect of employment. Such a right came into existence
only with the advent of the Human Rights Act. Before that
time, nothing in the Bill would have prevented Air Canada
from establishing a retirement age for its pilots. The question is
whether, in those provisions of the Act which deal with age
discrimination, an instance of inequality before the law has
been introduced, and thus a violation of the Bill committed.
In conferring the right not to be discriminated against on the
basis of age, the act makes, ab initio, nothing more than a
restricted grant. The right is conferred only on those persons
who do not fall within the exceptions set forth in section 14; to
those who do fall within the exceptions, there is no grant at all.
Paragraph 14(c) constitutes part of the definition of the class of
persons for whose benefit the bar against discrimination is
enacted.
According to the majority judgment in MacKay, where it is
alleged that equality before the law has been denied, the
decisive question is whether the legislation at issue was passed
in pursuit of a valid federal objective, within the meaning fixed
by certain Supreme Court precedents. None of those authori
ties makes the answer to the question a function of the presence
either of arbitrariness, or of necessity for the achievement of a
socially desirable objective, although such factors may have
some bearing.
But whether one adopts the reasoning of Ritchie J. or that of
McIntyre J. (also in MacKay), the applicant's claim that
paragraph 1(b) has been contravened is without foundation.
Whatever the tests that are to be applied, if a court is to accord
due respect to the judgment of Parliament it cannot impose its
own judgment and thereby negate what Parliament has enacted
unless it has before it much more than mere argument to the
effect that the distinction which allegedly creates inequality is
abitrary or unnecessary. In the instant case, it has not been
demonstrated that, in restricting the protection against job-
related age discrimination to those below the normal retirement
age, Parliament was not pursuing a valid federal objective; nor
has it been shown that the basis for the distinction made by the
Act is arbitrary or unnecessary. There is nothing arbitrary in
the Act's forbearing to compel an employer to retain employees
after they have reached the normal age of retirement, or in
stipulating—when conferring a new right—that the right is to
attach only so long as the persons concerned remain below that
age. Nor should a provision such as paragraph 14(c) be regard
ed as unnecessary, for without it an employer would be obliged
to keep an employee until incompetence could be demonstrat-
ed—a situation which would often be dangerous. Furthermore,
where Parliament is creating a new right with a view to the
achievement of a valid federal objective, the defining, by Par
liament, of the class of persons on whom the right is conferred
is a necessary element of the pursuit of that objective.
In his case against CALPA, the applicant contended that the
union had violated section 10 of the Act by entering into the
pension plan agreement. That agreement, though, was made
after the complaint was lodged, and therefore cannot serve as
the basis of a decision regarding the present application. On the
other hand, it was also argued that CALPA contravened
section 10 by failing to take steps to alter the policy and
practice of Air Canada, thereby limiting the employment
opportunities of CALPA's older members.
Paragraph 14(c) cannot be read as referring either to any
thing in the conduct of CALPA alleged in the complaint, or to
what is labelled as a discriminatory practice by section 10. The
contrary interpretation adopted by the Commission cannot be
upheld on the ground that, as a reasonable interpretation, it
should not be interfered with by the Court; while this saving
principle applies in respect of the interpretation of collective
agreements, it does not apply to the interpretation of statutes.
Accordingly, the Commission's decision with regard to CALPA
should be set aside.
CASES JUDICIALLY CONSIDERED
APPLIED:
Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d)
603; MacKay v. The Queen, [1980] 2 S.C.R. 370; 114
D.L.R. (3d) 393; R. v. Burnshine, [1975] 1 S.C.R. 693;
44 D.L.R. (3d) 584; Attorney General of Canada v. Bliss,
[1978] 1 F.C. 208; 77 D.L.R. (3d) 609 (C.A.).
REFERRED TO:
Prata v. Minister of Manpower & Immigration, [ 1976] 1
S.C.R. 376; 52 D.L.R. (3d) 383; Bliss v. Attorney Gener
al of Canada, [1979] 1 S.C.R. 183; 92 D.L.R. (3d) 417;
McLeod et al. v. Egan et al., [1975] I S.C.R. 517;
Attorney General of Canada v. Lavell, [ 1974] S.C.R.
1349; 38 D.L.R. (3d) 481; Ridge v. Baldwin and Others,
[1964] A.C. 40 (H.L.).
COUNSEL:
I. G. Scott, Q.C. and R. Wells for applicant.
A. Whiteley for respondent Canadian Human
Rights Commission.
R. P. Saul for respondent Air Canada.
A. E. Golden, Q.C. for respondents Rollie E.
Cook and Norman J. Foster.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
applicant.
Legal Services, Canadian Human Rights
Commission, Ottawa, for respondent Canadi-
an Human Rights Commission.
Air Canada Law Branch, Montreal, for
respondent Air Canada.
Golden, Levinson, Toronto, for respondents
Rollie E. Cook and Norman J. Foster.
The following are the reasons for judgment in
action A-263-82 rendered in English by
THURLOW C.J.: This is an application to review
and set aside a decision of the Canadian Human
Rights Commission issued on March 23, 1982,
which dismissed the applicant's complaint that his
employer, Air Canada, had a policy and practice
which forced pilots to retire upon attaining 60
years of age, contrary to sections 7 and 10 of the
Canadian Human Rights Act [S.C. 1976-77, c.
33]. The Court heard at the same time a further
application on File No. A-803-82 to review and set
aside a decision of the same Commission issued on
May 20, 1982, which dismissed the applicant's
further complaint that his union, the Canadian Air
Line Pilots Association, had not acted to alter Air
Canada's policy and practice of forcing pilots to
retire at 60 years of age and in doing so had
limited the employment opportunities of such
pilots, contrary to sections 9 and 10 of the Canadi-
an Human Rights Act. Both complaints were
dated November 24, 1980.
The ground for relief put forward in both
applications is that the Canadian Human Rights
Commission erred in law by applying the provi
sions of the Canadian Human Rights Act in a
manner that abrogates and infringes the appli
cant's right to equality before the law under para
graph 1(b)' of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III]. As section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] is not yet in
effect, counsel for the applicant raised no submis
sion that the Commission erred in not applying it.
These reasons deal with both applications.
' 1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
The material facts are few and simple. It is not
disputed that Air Canada follows the policy and
practice referred to in the complaints or that,
pursuant to it, on September 1, 1981, that is to say
some nine months after the complaints had been
lodged, the applicant, after having been in the
employ of Air Canada as a pilot for some 37 years,
and notwithstanding the fact he was in good health
and fully qualified to perform the duties of a pilot,
was retired by Air Canada because he had reached
60 years of age. His union, CALPA, favouring the
Air Canada policy of retiring pilots on their attain
ing 60 years of age, did nothing to cause Air
Canada to change the policy and indeed some five
months before the date of the applicant's forced
retirement entered into an agreement with Air
Canada incorporating Air Canada's pension plan
into the collective agreement. The Commission
considered that 60 was the normal age of retire
ment for airline pilots and that particular conclu
sion was not, as I understood the argument, a
subject of attack. In any event, that was a question
of fact for the Commission. The argument in
respect of the decision on the complaint against
Air Canada also focussed only on section 7, no
point being made on section 10.
The applicant's attack was directed at the ine
quality before the law which was said to arise from
persons reaching the normal retirement age being
subject to compulsory retirement merely on
account of age and thus being subject to harsher
treatment than persons in similar positions who
had not reached that age.
It may be noted at this point that though the
fact that age is not one of the bases of discrimina
tion mentioned in section 1 of the Canadian Bill of
Rights does not in itself exclude the application of
that section (vide Curr v. The Queen 2 ), the appli
cant, neither in 1960, when the Bill was enacted,
nor previously, nor at any time until the coming
into force of the relevant provisions of the Canadi-
an Human Rights Act in 1978, had any legal right
to non-discrimination on account of age in relation
to his employment by Air Canada. He had nothing
akin to tenure either for life or for any particular
2 [1972] S.C.R. 889; 26 D.L.R. (3d) 603, per Laskin J. [as
he then was], at p. 896 S.C.R., p. 611 D.L.R.
time and nothing in the Canadian Bill of Rights
would have prevented Air Canada from establish
ing a retirement age for its pilots or from retiring
the applicant upon his reaching that age. That is
what in fact appears to have occurred, the only
additional feature being that the Commission has
concluded that 60, the age of retirement adopted
by Air Canada, is the normal age of retirement of
airline pilots within the meaning of paragraph
14(c) of the Canadian Human Rights Act. What
is in issue is thus whether that Act, in its provi
sions banning discrimination on account of age,
creates a situation of inequality before the law
which is repugnant to and in conflict with para
graph 1(b) of the Canadian Bill of Rights.
The Canadian Human Rights Act provides inter
alga:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement;
(b) employment of an individual is refused or terminated
because that individual
(i) has not reached the minimum age, or
(ii) has reached the maximum age
that applies to that employment by law or under regulations,
which may be made by the Governor in Council for the
purposes of this paragraph;
(c) an individual's employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual;
(d) the terms and conditions of any pension fund or plan
established by an employer provide for the compulsory vest
ing or locking-in of pension contributions at a fixed or
determinable age in accordance with section 10 of the Pen
sion Benefits Standards Act; or
(e) individual is discriminated against, otherwise than in
employment, on the basis of age in a manner that is pre
scribed by guidelines issued by the Canadian Human Rights
Commission pursuant to subsection 22(2) to be reasonable.
It appears to me that while this statute confers
for the first time a right not to be discriminated
against on account of age in matters relating to
employment, it confers the right only on persons
who do not fall within the exceptions outlined in
section 14. On those who fall within the exceptions
it confers no such right. Further, in the case of
those to whom paragraph 14(c) applies the statute
confers the right only until the employee reaches
the normal age of retirement for persons in similar
positions. In my view the statute, even if contrary
to provisions of the Canadian Bill of Rights,
cannot be read as conferring the right on those
who fall within the exceptions. To do so would not
merely be to hold a provision of the statute inoper
ative but would amend the statute and amplify
what Parliament has enacted. As it seems to me
the effect of holding that paragraph 14(c), which
is in substance a part of the definition of the
persons for whose benefit the new prohibition is
enacted, offends paragraph 1(b) of the Canadian
Bill of Rights is to render inoperative the provi
sions conferring the right rather than to extend the
new right to persons on whom it has not been
conferred.
The applicant's case was: that the effect of
paragraph 14(c) is to distinguish between two
classes of federal employees, giving the benefit of
age-discrimination rights to younger employees
while denying those benefits to persons who have
reached "the normal age of retirement"; that the
test to be applied in equality-before-the-law cases
is that propounded by McIntyre J., in MacKay v.
The Queen,' that is to say, whether inequality of
treatment is arbitrary, capricious or unnecessary
or is a rationally based and acceptable variation
from the general principle of universal application
of law to meet special conditions and to attain a
necessary and desirable social objective; that if
paragraph 14(c) is construed as denying the ben
efit of age-discrimination rights to those over the
normal retirement age, even where that age is not
reasonably related to the capacity of such individu
als to work safely and effectively, the inequality
created by paragraph 14(c) is arbitrary, capricious
and unnecessary and the provision is inoperative in
the face of paragraph 1(b) of the Canadian Bill of
Rights; and that the Commission erred in constru
ing and applying paragraph 14(c) when it failed to
read it as authorizing mandatory retirement at
some specific age only when the age selected is
reasonably related to work capacity. So construed,
it was argued, paragraph 14(c) would not distin
guish between classes or groups on an arbitrary
basis, it would serve a desirable social objective
and it would be a rationally based variation from
the general principle of universal application of the
law to meet specific circumstances.
I do not agree with the applicant's submissions.
First, the test applied by Ritchie J. who wrote
for the majority of the Court in the MacKay case
was simply whether it had been demonstrated that
in enacting the legislation under attack Parliament
was not seeking to achieve a valid federal objective
in the sense explained in the Curr, 4 Praia,'
Burnshine 6 and Bliss' cases. None of those cases
appears to me to impose a test of arbitrariness or
3 [1980] 2 S.C.R. 370; 114 D.L.R. (3d) 393.
° [1972] S.C.R. 889; 26 D.L.R. (3d) 603.
Prata v. Minister of Manpower & Immigration, [1976] 1
S.C.R. 376; 52 D.L.R. (3d) 383.
6 R. v. Burnshine, [1975] 1 S.C.R. 693; 44 D.L.R. (3d) 584.
' Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183;
92 D.L.R. (3d) 417.
capriciousness or necessity for the purpose of
achieving a socially desirable objective in order to
determine whether constitutionally valid legisla
tion has been passed in pursuance of a valid feder
al objective, though such considerations may of
course have a bearing on the resolution of the
problem. But regardless of what tests are to be
applied, it appears to me that due respect for the
judgment of Parliament in enacting the legislation
alone suggests that, before superimposing and sub
stituting its judgment to negate what Parliament
has enacted, a court should have before it much
more than mere argument that the distinction
complained of as creating inequality is not ration
ally based and is arbitrary or capricious or un
necessary. Thus in the Curr cases Laskin J. (as he
then was) said:
Assuming that "except by due process of law" provides a means
of controlling substantive federal legislation—a point that did
not directly arise in Regina v. Drybones—compelling reasons
ought to be advanced to justify the Court in this case to employ
a statutory (as contrasted with a constitutional) jurisdiction to
deny operative effect to a substantive measure duly enacted by
a Parliament constitutionally competent to do so, and exercis
ing its powers in accordance with the tenets of responsible
government, which underlie the discharge of legislative author
ity under the British North America Act. Those reasons must
relate to objective and manageable standards by which a Court
should be guided if scope is to be found in s. 1(a) due process to
silence otherwise competent federal legislation.
and later:
Parliament has spoken clearly on certain types of discrimina
tion; it has used familiar, albeit general, words in its legislative
guarantees of freedom of religion, speech, assembly, association
and the press; and it has been even more specific in what it has
enumerated in s. 2, although even here there are difficulties of
interpretation. The very large words of s. I (a), tempered by a
phrase ("except by due process of law") whose original English
meaning has been overlaid by American constitutional impera
tives, signal extreme caution to me when asked to apply them in
negation of substantive legislation validly enacted by a Parlia
ment in which the major role is played by elected representa
tives of the people. Certainly, in the present case, a holding that
the enactment of s. 223 has infringed the appellant's right to
the security of his person without due process of law must be
grounded on more than a substitution of a personal judgment
for that of Parliament. There is nothing in the record, by way
of evidence or admissible extrinsic material, upon which such a
8 [1972] S.C.R. 889; 26 D.L.R. (3d) 603, at pp. 899-900 and
902-903 S.C.R., pp. 613-614 and 615-616 D.L.R.
holding could be supported. I am, moreover, of the opinion that
it is within the scope of judicial notice to recognize that
Parliament has acted in a matter that is of great social concern,
that is the human and economic cost of highway accidents
arising from drunk driving, in enacting s. 223 and related
provisions of the Criminal Code. Even where this Court is
asked to pass on the constitutional validity of legislation, it
knows that it must resist making the wisdom of impugned
legislation the test of its constitutionality. A fortiori is this so
where it is measuring legislation by a statutory standard, the
result of which may make federal enactments inoperative.
It is well to bear in mind that paragraph 14(c) is
not applicable only to the case of the applicant or
only to the case of airline pilots. It is a provision of
general application defining one of the limits of
the new prohibition of discrimination on the basis
of age in matters relating to employment. There is
nothing in the record before us which, in my view,
demonstrates or affords any compelling reason to
think that in restricting the application of the
prohibition to persons other than those who have
reached the "normal age of retirement" for
employees working in similar positions and thus
providing no such protection for those who have
reached that age, Parliament was not pursuing a
valid federal objective. Nor has it been demon
strated that the basis for the distinction is irration
al as being arbitrary or capricious or even unneces
sary. Prior to the enactment of the Canadian
Human Rights Act, an employer was at liberty to
choose the age group from which he would employ
persons for any particular job. The Act has largely
abrogated that right but it has not gone so far as to
compel the employer to keep employees after they
attain the normal age of retirement. I see nothing
arbitrary or capricious in that. Nor do I think it is
arbitrary or capricious to confer a new right on
persons until they reach the normal age of retire
ment for persons in similar positions but not after
wards. The identification of the normal age of
retirement may present its problems but that is not
in point. It may be noted as well that the prohibi
tion is of general application and confers on all
employees the same right until the age of retire
ment is reached.
Moreover, I would not conclude that such a
provision was not necessary. Without it an employ
er would be obliged to keep an employee beyond
the time when he continued to be competent and
until incompetence could be demonstrated. In
many situations that would be dangerous to the
employee and to others as well as to the employer's
property. There is in this alone, in my view, a
rational basis for the choice of the normal age of
retirement as a limit on the prohibition imposed by
the Act, a limit which as it seems to me was
necessary to the achievement of the socially desir
able objective to be pursued by prohibiting dis
crimination on account of age in matters relating
to employment.
Further, assuming constitutional legislative au
thority by Parliament over a subject-matter and a
valid federal objective to be pursued, it seems to
me that it is not merely open to Parliament, when
creating a new right, one not theretofore known to
the law, to define the limits of the new right and
the persons on whom it is conferred, but that the
definition of the right and of the class of persons
on whom it is conferred is itself both a part, and a
necessary part of the valid federal objective to be
pursued. In that aspect the present situation
resembles that in the Prata 9 case.
It thus appears to me that whether the reasoning
of McIntyre J. or that of Ritchie J. in the MacKay
case is applied the applicant's case based on para
graph 1(b) of the Canadian Bill of Rights is not
well-founded and that the application in respect of
the decision on the complaint against Air Canada
should be dismissed.
A further point was, however, raised on the
application to review the decision on the complaint
against CALPA. That decision was expressed as
follows in a letter of May 20, 1982, written by the
Chief Commissioner to the applicant:
The Canadian Human Rights Commission has reviewed your
complaint against the Canadian Air Line Pilots' [sic] Associa
tion alleging discrimination on the basis of age.
The policy of Air Canada, with which the Association is in
agreement, comes within the exception enumerated in Section
9 [1976] 1 S.C.R. 376; 52 D.L.R. (3d) 383.
14(c) of the Canadian Human Rights Act. The Commission
has therefore found it necessary to dismiss your complaint.
It was said that the Commission erred by reading
paragraph 14(c) of the Canadian Human Rights
Act as though it provided an exception to the
prohibition of section 10 as well as to the prohibi
tion of section 7. For convenience I shall repeat the
relevant provisions:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
14. It is not a discriminatory practice if
(c) an individual's employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual;
In his memorandum of argument counsel for the
applicant based his submission on the allegation
that CALPA, contrary to section 10, had entered
into an "agreement affecting employment" that
adversely affected the applicant's employment on a
prohibited ground of discrimination. As the agree
ment was made after the complaint was lodged, it
does not appear to me that it can be treated as a
basis for determining the present application.
However, in the course of argument counsel also
relied on the conduct of CALPA referred to in the
complaint in failing to act to alter the policy and
practice of Air Canada and in doing so limiting
the employment opportunities of older members of
the union, contrary to section 10 of the Act.
The response of counsel for CALPA to the
applicant's submission was that since terminations
under paragraph 14(c) fall within "any other
matter relating to employment" in paragraph
10(b), paragraph 14(c) is a specific exception to
the coverage and prohibition of discriminatory
practices in section 10, and that even if the Com
mission erred in so interpreting the statute, since
the interpretation was a reasonable one that the
wording would bear, the Court should not interfere
to impose its own interpretation.
In my opinion, paragraph 14(c) cannot be read
as referring to anything in the conduct of CALPA
alleged in the complaint or to what is prohibited as
a discriminatory practice by section 10. It follows,
in my view, that the Commission erred in law in
dismissing the complaint on the ground that the
policy of Air Canada with which CALPA was in
agreement fell within the exception of paragraph
14(c). Moreover, while the principle invoked for
saving the Commission's interpretation applies in
the interpretation of such documents as collective
agreements, in my opinion it does not apply to the
interpretation of statutes. '° I would, therefore, set
aside the decision and refer the matter back to the
Commission for reconsideration and redetermina-
tion of the complaint on the basis that paragraph
14(c) has no application to the matters which it
raises.
* * *
The following are the reasons for judgment in
action A-803-82 rendered in English by
THURLOW C.J. (dissenting): For the reasons
given on the application on File No. A-263-82
(copy attached), I would set aside the decision of
the Canadian Human Rights Commission pro
nounced on or about the 20th day of May, 1982,
and refer the matter back to the Commission for
reconsideration and redetermination of the appli
cant's complaint on the basis that paragraph 14(c)
10 See McLeod et al. v. Egan et al., [1975] 1 S.C.R. 517, per
Laskin C.J., at p. 518.
of the Canadian Human Rights Act has no
application to the matters which the complaint
raises.
* * *
The following are the reasons for judgment in
actions A-263-82 and A-803-82 rendered in
English by
HEALD J.: These are section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] applications
to review and set aside two decisions of the
Canadian Human Rights Commission (the Com
mission) dated March 23, 1982 and May 20, 1982.
The decision of March 23, 1982 dismissed a
complaint by the applicant that his employer, the
respondent, Air Canada, had terminated his
employment on the basis of age contrary to sec
tions 3 and 7 of the Canadian Human Rights Act.
The decision of May 20, 1982, dismissed the appli
cant's complaint that his union, the Canadian Air
Line Pilots Association (CALPA) had, contrary to
sections 9 and 10 of the Canadian Human Rights
Act, acted so as to adversely affect his employment
opportunities by entering into a collective agree
ment with Air Canada that purported to oblige Air
Canada to terminate his employment upon a pro
hibited ground of discrimination. The applicant
was an Air Canada pilot for some 37 years. He
was forcibly retired on September 1, 1981 because
he had reached the age of 60. On April 3, 1981,
Air Canada and CALPA had signed a "letter of
understanding" incorporating Air Canada's pilot
pension plan into the collective agreement between
the parties. Under that plan, there was a provision
for the mandatory retirement of pilots at age 60.
There was uncontradicted evidence before the
Commission that the applicant had undergone a
comprehensive medical examination approximate
ly one month before his sixtieth birthday and that
examination disclosed no evidence of physical
abnormality or disease that would impair the
applicant's ability to continue in his position with
Air Canada as a pilot after age 60.
The Commission's decision of March 23, 1982
took the form of a letter to the applicant from
Chief Commissioner R. G. L. Fairweather. The
operative part of that decision reads as follows
(Case, A-263-82, page 7):
The decision made in October 1981 by a Human Rights
Tribunal in the matter of Douglas Campbell versus Air Canada
determined that the mandatory retirement age of sixty years
that Air Canada had applied to its flight attendants came
within the exception enumerated under section 14(c) of the
Canadian Human Rights Act.
The Commission considers that a similar reasoning would be
applied to the situation of pilots and therefore has been obliged
to dismiss your two complaints."
The decision of May 20, 1982 also took the form
of a letter from Chief Commissioner Fairweather
to the applicant. The relevant part of that decision
reads:
The policy of Air Canada, with which the Association is in
agreement, comes within the exception enumerated in Section
14(c) of the Canadian Human Rights Act. The Commission
has therefore found it necessary to dismiss your complaint.
I think it desirable for a proper consideration of
the issues raised by these applications to set forth
hereunder the applicable sections of the Canadian
Human Rights Act. Those sections read as follows:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
9. (1) It is a discriminatory practice for an employee organi
zation on a prohibited ground of discrimination
(a) to exclude an individual from full membership in the
organization;
(b) to expel or suspend a member of the organization; or
(e) to limit, segregate, classify or otherwise act in relation to
a member of the organization in a way that would
(i) deprive the member of employment opportunities, or
(ii) limit employment opportunities or otherwise adversely
affect the status of the member.
" The reference to two complaints in the decision pertains to
the applicant's complaint on behalf of himself and another
complaint made by the applicant on behalf of M. G. Church, a
fellow pilot.
(2) Notwithstanding subsection (1), it is not a discriminatory
practice for an employee organization to exclude, expel or
suspend an individual from membership in the organization
because that individual has reached the normal age of retire
ment for individuals working in positions similar to the position
of that individual.
(3) For the purposes of this section and sections 10 and 46,
"employee organization" includes a trade union or other organ
ization of employees or local thereof, the purposes of which
include the negotiation, on behalf of employees, of the terms
and conditions of employment with employers.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement;
(b) employment of an individual is refused or terminated
because that individual
(i) has not reached the minimum age, or
(ii) has reached the maximum age
that applies to that employment by law or under regulations,
which may be made by the Governor in Council for the
purposes of this paragraph;
(c) an individual's employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual;
(d) the terms and conditions of any pension fund or plan
established by an employer provide for the compulsory vest
ing or locking-in of pension contributions at a fixed or
determinable age in accordance with section 10 of the Pen
sion Benefits Standards Act; or
(e) an individual is discriminated against, otherwise than in
employment, on the basis of age in a manner that is pre
scribed by guidelines issued by the Canadian Human Rights
Commission pursuant to subsection 22(2) to be reasonable.
Both section 28 applications were argued together
and it was common ground that the principal issue
raised by both applications was whether the Com
mission erred by applying paragraph 14(c) of the
Canadian Human Rights Act in a manner that
abrogates and infringes upon the applicant's right
to equality before the law as protected by para-
graph 1(b) of the Canadian Bill of Rights 12 .
Counsel for the applicant made an initial sub
mission to the effect that while age discrimination
is not expressly prohibited by the Bill of Rights,
nevertheless, federal legislation which abrogates
any of the fundamental rights and freedoms enu
merated in the Bill, including the right to equality
before the law and the protection of the law as
enumerated in paragraph 1(b) supra, will be of
fensive notwithstanding that it does not discrimi
nate on the basis of race, national origin, colour,
religion or sex. In support of this submission,
counsel cited a number of decisions of the
Supreme Court of Canada. 13 As I understand both
counsel for Air Canada and counsel for CALPA,
they did not disagree with this submission and
since it appears to be well-supported by the deci
sions of the Supreme Court of Canada supra, I
accept it as a correct statement of law.
The second submission by counsel for the appli
cant was to the effect that paragraph 14(c) of the
Canadian Human Rights Act is a law of Canada
which infringes upon the right of the applicant to
"equality before the law" since it creates two
separate groups of federal employees, those who
are protected against age discrimination in the
workplace and a separate group, including this
applicant, who have reached "the normal age of
retirement", which group, because of paragraph
14(c), are arbitrarily denied protection against age
discrimination. In his submission, Parliament
cannot withhold the right to protection against age
discrimination arbitrarily and capriciously and
paragraph 14(c) is purely arbitrary and conse
quently offends paragraph 1(b) of the Bill of
12 Said paragraph 1(b) reads as follows:
1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without dis
crimination by reason of race, national origin, colour, reli
gion or sex, the following human rights and fundamental
freedoms, namely,
(b) the right of the individual to equality before the law
and the protection of the law;
13 See Curr v. The Queen, [1972] S.C.R. 889, at pp. 892 and
896-897; 26 D.L.R. (3d) 603, at pp. 608 and 611; Attorney
General of Canada v. Lavell, [1974] S.C.R. 1349, at pp.
1362-1363; 38 D.L.R. (3d) 481, at p. 492; R. v. Burnshine,
[1975] 1 S.C.R. 693, at p. 700; 44 D.L.R. (3d) 584, at pp.
588-589; Bliss v. Attorney General of Canada, [1979] 1 S.C.R.
183, at p. 191; 92 D.L.R. (3d) 417, at pp. 422-423.
Rights. I do not accept the validity of this submis
sion. The issue of "equality before the law" was
addressed by this Court in the case of Attorney
General of Canada v. Bliss. 14 In that case, the
validity of section 46 of the Unemployment Insur
ance Act, 1971 [S.C. 1970-71-72, c. 48] was in
issue. The effect of the application of section 46
was to deprive the applicant of the right to claim
unemployment insurance benefits to which she
would otherwise have been entitled had she not
been pregnant since the section imposed different
qualifications for pregnant women than for other
persons. Speaking for the Court, my brother,
Pratte J., said at [page 213 F.C.,] page 613
D.L.R.: 15
The question to be determined in this case is therefore, not
whether the respondent has been the victim of discrimination
by reason of sex but whether she has been deprived of "the
right .. . to equality before the law" declared by section 1(b) of
the Canadian Bill of Rights. Having said this, I wish to add
that I cannot share the view held by the Umpire that the
application of section 46 to the respondent constituted discrimi
nation against her by reason of sex. Assuming the respondent to
have been "discriminated against", it would not have been by
reason of her sex. Section 46 applies to pregnant women, it has
no application to women who are not pregnant, and it has no
application, of course, to men. If section 46 treats unemployed
pregnant women differently from other unemployed persons, be
they male or female, it is, it seems to me, because they are
pregnant and not because they are women.
At [page 214 F.C.,] page 614 D.L.R. of the report,
Mr. Justice Pratte went on to state:
It is natural that the rights and duties of individuals vary
according to their situation. But this is just another way of
saying that those rights and duties should be the same in
identical situations. Having this in mind, one could conceive
"the right ... to equality before the law" as the right of an
individual to be treated by the law in the same way as other
individuals in the same situation. However, such a definition
would be incomplete since no two individuals can be said to be
in exactly the same situation. It is always possible to make
distinctions between individuals. When a statute distinguishes
between persons so as to treat them differently, the distinctions
may be either relevant or irrelevant. The distinction is relevant
when there is a logical connection between the basis for the
distinction and the consequences that flow from it; the distinc
tion is irrelevant when that logical connection is missing. In the
light of those considerations, the right to equality before the
law could be defined as the right of an individual to be treated
as well by the legislation as others who, if only relevant facts
14 [1978] 1 F.C. 208; 77 D.L.R. (3d) 609 (C.A.).
15 This passage from the judgment of Pratte J. was cited with
approval by Ritchie J. in delivering the judgment of the
Supreme Court of Canada: [1979] 1 S.C.R. 183, at pp. 190-
191; 92 D.L.R. (3d) 417, at p. 422.
were taken into consideration, would be judged to be in the
same situation. According to that definition, which, I think,
counsel for the respondent would not repudiate, a person would
be deprived of his right to equality before the law if he were
treated more harshly than others by reason of an irrelevant
distinction made between himself and those other persons. If,
however, the difference of treatment were based on a relevant
distinction (or, even on a distinction that could be conceived as
possibly relevant) the right to equality before the law would not
be offended.
I agree with that view of the matter and believe
that it can and should be applied in the circum
stances of this case. In my view, on these facts, the
distinction imposed by paragraph 14(c) is a "rele-
vant" distinction since "there is a logical connec
tion between the basis for the distinction and the
consequences that flow from it". Paragraph 14(c)
distinguishes between persons who have reached
the normal age of retirement and younger
employees in the same class who have not reached
that age. The class here being considered is airline
pilots. The record establishes that the age of 60 is
the normal retirement age invariably applied at
Air Canada and at many of the other Canadian
airlines. It is generally accepted in the aviation
industry throughout Canada and the United States
by major air carriers. The Federal Aviation
Administration Regulations in the U.S.A. [ 14
CFR] prohibit commercial airlines from assigning
a pilot who has reached the age of 60 either as
pilot-in-command or co-pilot. The standards and
recommendations contained in Annex 1 to the
Chicago Convention on International Civil Avia
tion [Convention opened for signature December
7, 1944, CTS 1944/36, pp. 34-56; 15 UNTS 295;
Annex 1 adopted April 14, 1948] stipulate a
retirement age of 60 for pilots-in-command or
co-pilots engaged in scheduled international air
services or non-scheduled international air trans
port operations. Additionally, it is the considered
opinion of CALPA, which association represents
the majority of airline pilots in Canada, that the
retirement age of 60 years is consistent with exist
ing medical knowledge and is a necessary require
ment for airline pilots. It is true that such a policy
does not have regard to individual differences in
capabilities at retirement age. It is also true, how
ever, that the only alternative policy would be to
allow individual pilots to continue flying until such
time as they demonstrate incompetence. Such a
policy would not be in accordance with the princi
ples of aviation safety and, consequently, not in the
public interest. Thus, in my view, the distinction
made by the application of paragraph 14(c) to the
facts of this case is a relevant distinction with a
logical and rational nexus between the compulso-
ry-retirement-at-60 provision and the conse
quences flowing from that distinction. On this
basis, I cannot conclude that paragraph 14(c) is an
arbitrary and capricious provision. I would,
accordingly, reject counsel's second submission.
The third submission by the applicant's counsel
is based on his view that the test to be applied in
equality-before-the-law cases should be expressed
as follows: Is such inequality as may be created by
legislation affecting a special class, arbitrary,
capricious or unnecessary or is it rationally based
and acceptable as a necessary variation from the
general principle of universal application of law to
meet special conditions and to attain a necessary
and desirable social objective? This test is taken
from the judgment of McIntyre J. in the case of
MacKay v. The Queen. 16
However, the reasons delivered by McIntyre J.
were the reasons of Dickson J. and himself. The
majority reasons of the Court were delivered by
Ritchie J. I agree with counsel for the applicant
that the recent jurisprudence of the Supreme
Court of Canada has established that legislation
which treats one class of individuals differently
than another will not offend against the equality
provisions in the Bill of Rights if the different
treatment is related to the pursuit of a "valid
federal objective". However, I am not persuaded
that counsel is right in his submission that
"although Mr. Justice Ritchie does not explicitly
adopt McIntyre J.'s version of the `valid federal
objective' test, nevertheless Ritchie J.'s reasoning
is parallel to that of McIntyre J. For this reason
the words of McIntyre J. may be relied on as the
best available indication of what test should be
applied in equality before the law cases." I say this
because at the outset of his reasons at page 401,
16 [1980] 2 S.C.R. 370; 114 D.L.R. (3d) 393.
Mr. Justice McIntyre states "while I am in agree
ment with the result reached by Ritchie J., I arrive
at that conclusion with different considerations in
mind and I feel obliged to set down my separate
views upon the questions raised in this appeal."
Additionally, I think the ratio of the majority in
MacKay as expressed by Mr. Justice Ritchie is
that in order to successfully invoke paragraph 1(b)
of the Bill of Rights so as to render inoperative
validly enacted federal legislation, it is necessary
for the complainant to satisfy the court that, in
enacting the impugned legislation, Parliament was
not seeking to achieve a valid federal objective. "
On my appreciation of the evidence in this case,
the applicant has not discharged that burden.
While I have concluded that there is some differ
ence between the test postulated by Dickson J. and
McIntyre J. on the one hand and that enunciated
by Ritchie J. for the majority on the other hand, I
wish to express my further view that on these facts
and on this record, I would be prepared to decide
on the basis of either test that the provisions of
paragraph 14(c) are rationally based and accept
able as a necessary variation from the general
principle and do attain a necessary and desirable
social objective. I so conclude for the reasons given
when discussing the applicant's second submission
supra.
The final submission by counsel for the appli
cant related specifically to the Commission's deci
sion dated May 20, 1982 which dismissed appli
cant's complaint against his union, CALPA. This
submission was that paragraph 14(c) should not be
read as though it provided an exception to the
prohibitions contained in section 10 as well as to
those contained in section 7. Counsel said that
paragraph 14(c) applied to section 7 because sec
tion 7 speaks to a refusal to continue to employ
and paragraph 14(c) also speaks to the same
subject-matter. However, said counsel, the same
connection cannot be said to exist between section
10 and paragraph 14(c). I do not agree. Paragraph
10(b) deals with "an agreement affecting recruit
ment, referral, hiring, promotion, training, appren
ticeship, transfer or any other matter relating to
17 Per Ritchie J. at pp. 393 and 394 S.C.R.
employment ..." (emphasis added). Paragraph
14(c) speaks of termination of employment. In my
view, a provision for termination of employment is
clearly a matter relating to employment and thus
section 10 and paragraph 14(c) deal with the same
subject-matter in much the same fashion as do
section 7 and paragraph 14(c). For these reasons I
would reject this submission.
In his memorandum of fact and law, counsel for
the applicant appeared to restrict his submissions
as to the non-applicability of paragraph 14(c) to
the provisions of paragraph (b) of section 10 of the
Canadian Human Rights Act. Likewise, counsel
for the union, as he was entitled to do, restricted
his reply to paragraph 10(b) and the applicability
of paragraph 14(c) to that paragraph. However, at
the oral hearing of the appeal, applicant's counsel
expanded his argument to include paragraph
10(a). As I understood his submission, he submit
ted that because of CALPA's acquiescence in and
agreement with the company's retirement policy,
such conduct amounted to the establishment or
pursuit of a policy or practice which deprived or
tended to deprive this applicant of his future
employment as a pilot because of his age, thus
breaching the provisions of paragraph 10(a).
Quite apart from any other consideration, I do
not think counsel for the union had adequate
opportunity to answer this submission since it was
not raised by the applicant in his memorandum
and had I concluded that the submission had
merit, I would have favoured deferral of a decision
on the complaint against the union to enable full
argument on the expanded basis for the complaint.
However, I reject this submission because I think
that paragraph 14(c) exempts a union as well as
an employer from the prohibitions of section 10
provided the requirements of paragraph 14(c) are
met in a particular case. In my view, on the facts
of this case, the applicant's employment ceased
because he had reached the normal age of retire
ment for airline pilots. Because this is so, the
discriminatory practices prescribed by both sec
tions 7 and 10 do not apply. To hold otherwise
would produce a result in which the employer
would be innocent and the union guilty of a similar
practice, policy or course of conduct, a result
which I doubt could ever have been intended. In
my view the parameters of paragraph 14(c) cannot
be restricted to the subjective act of an employer
terminating the employment of an employee. Para
graph 14(c) addresses itself, rather, to the objec
tive circumstances therein described. Put another
way, once the fact of termination of employment
at normal retirement age has been established, any
and all practices relating to that termination which
would be otherwise considered under the Act to be
discriminatory and thus prohibited, are no longer
to be so considered because of the protective
umbrella of paragraph 14(c). Reading section 10
and paragraph 14(c) together and in context, I am
persuaded that Parliament clearly intended the
protective sweep of paragraph 14(c) to encompass
the provisions of all of section 10 as well as those
of section 7. Both sections commence with the
words "It is a discriminatory practice...." Para
graph 14(c) restricts the normal and usual para
meters of those words as used therein and in so
doing deems certain practices which would other
wise be discriminatory, non-discriminatory. It is
the "practice" which is deemed to be non-dis
criminatory, by whomsoever established or pur
sued.
For these reasons I have concluded that the
applicant's complaint against the union is not
well-founded.
Accordingly, I would dismiss both section 28
applications.
* * *
The following are the reasons for judgment in
actions A-263-82 and A-803-82 rendered in
English by
McQua.mD D.J.: This is an application under
section 28 of the Federal Court Act to review and
set aside two decisions of the Canadian Human
Rights Commission, dated respectively March 23,
1982 and May 20, 1982.
By the former of these decisions, the Commis
sion dismissed the complaint filed by Stevenson
that his then employer, Air Canada, had terminat
ed his employment on the ground of age, contrary
to sections 3 and 7 of the Canadian Human Rights
Act; by the latter of these decisions, the Commis
sion dismissed the complaint filed by Stevenson
that the union of which he was a member, the
Canadian Air Line Pilots Association, had, con-
trary to sections 9 and 10 of the same Act, acted
as to affect his employment opportunities adverse
ly by entering into a collective agreement with Air
Canada which allegedly purported to oblige Air
Canada to terminate his employment upon a pro
hibited ground of discrimination, i.e. age.
Section 3 of the Canadian Human Rights Act
reads:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
And section 7:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
And the relevant portion of section 9:
9. (1) It is a discriminatory practice for an employee organi
zation on a prohibited ground of discrimination
(c) to limit, segregate, classify or otherwise act in relation to
a member of the organization in a way that would
(i) deprive the member of employment opportunities, or
(ii) limit employment opportunities or otherwise adversely
affect the status of the member.
(2) Notwithstanding subsection (1), it is not a discriminatory
practice for an employee organization to exclude, expel or
suspend an individual from membership in the organization
because that individual has reached the normal age of retire
ment for individuals working in positions similar to the position
of that individual.
And, finally, section 10:
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment . opportunities on a prohibited
ground of discrimination.
Although it is not necessary for the purposes of
this decision to do so, I would be of the view that
section 3 is merely a descriptive section outlining
in broad terms what constitutes prohibited grounds
of discrimination under the Act, but it is not a
section under which a complaint may be laid.
The essential facts are not in issue. The appli
cant Stevenson was a senior captain who had been
in the employ of Air Canada as a pilot for some 37
years. He was, as well, a member of the Canadian
Air Line Pilots Association (CALPA), which is
the employee organization or union representing
most, if not all, of the commercial pilots in Canada
and which, in fact, represented Air Canada pilots,
including Stevenson, as bargaining agent with that
company.
Air Canada had had, for some years prior to the
critical dates in this matter, a pension plan cover
ing its pilots, including Stevenson, which provided,
inter alia, for mandatory retirement upon each
pilot's attainment of the age of 60 years. By a
"letter of understanding" dated April 3, 1981,
executed by CALPA, that pension plan was incor
porated into the then existing collective agreement.
A necessary and inevitable implication of this
action would be that mandatory retirement at the
age of 60 would, in consequence, become an inci
dent of the same collective agreement.
Capt. Stevenson turned 60 years of age on Sep-
tember 1, 1981, whereupon, in conformity with the
provisions of the collective agreement, Air Canada
placed him on mandatory retirement, thus effec
tively terminating his employment as an active
pilot in its service.
Two points of significance should be noted here.
Air Canada does not allege that Stevenson's physi
cal capacity to continue to function as a commer
cial pilot was in any way a factor which brought
about his retirement. In fact, all the evidence on
the record would appear to establish conclusively
that he continues to meet all the physical and
psychological standards required by the industry
of an individual engaged as a senior captain in
charge of the largest commercial passenger airlin
ers. The second point, for whatever it may be
worth, is that the union, CALPA, as a party to the
collective agreement with Air Canada, which in-
corporates by reference the provision for mandato
ry retirement, supports the position of Air Canada
and, hence, is a named respondent in these
proceedings.
The Canadian Human Rights Commission con
sidered the two complaints filed by Stevenson, one
against Air Canada and the other against
CALPA, and on the dates earlier above noted
dismissed both, on the ground that each fell within
the exception created by paragraph 14(c) of the
Canadian Human Rights Act, which reads:
14. It is not a discriminatory practice if
(e) an individual's employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual;
The basic position of the applicant, and the sole
ground upon which this application is founded, is
as simple as it is dramatic: that paragraph 14(c) of
the Canadian Human Rights Act is contrary to
paragraph 1(b) of the Canadian Bill of Rights, in
that it, paragraph 14(c), deprives the applicant
Stevenson of his right to equality before the law,
guaranteed by paragraph 1(b), and by virtue
thereof paragraph 14(c) is inoperative and of no
force and effect and thus constitutes no defence or
response to the complaints filed.
The relevant provision of the Bill of Rights,
which remains in force as a fundamental corner
stone of Canadian statute law unaffected by the
subsequent enactment of the Constitution Act,
1982, is as follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
It may be observed that this section, in its
enumeration of discriminatory prohibitions, makes
no reference to the factor of "age". That, however,
is not an issue since it was conceded by all counsel
that the authoritative jurisprudence touching upon
the matter holds that the enumeration contained in
section 1 of the Bill of Rights is not exclusionary
or specifically limited to the factors of discrimina
tion indicated but is to be interpreted as including
as well discrimination for other reasons, including
that of age. 18
By virtue of the master-and-servant relationship
which existed between the employer and the
employee in this 'case, Air Canada would, at
common law, have been entitled to dismiss Steven-
son at any time, for cause or for no cause, and the
latter's only remedy would be for breach of con
tract, if, indeed, he could prove such a breach. "
Subject to recourse to that remedy in damages on
the part of the employee, it would clearly have
been open to the employer to dismiss its employee
on the ground, for example, of age.
This common law principle was modified and
qualified by section 1 of the Canadian Bill of
Rights, which precluded discrimination against
any person (including an employee) on any one of
the enumerated grounds, as well as on any other
ground which the court might deem to be of a
discriminatory nature, which might result in an
inequality before the law, a differentiation in treat
ment as it applies to one group as opposed to the
treatment accorded another group. This has been
held not to be an absolute right but itself qualified
when the differentiation is effected by legislation
enacted for the purpose of achieving a valid federal
objective. 20
As to what is encompassed in that `valid federal
objective" will be considered post.
The Canadian Human Rights Act was enacted
subsequent to the Bill of Rights and is subject to
its overriding features; where clear conflict is seen
to exist, the provisions of the Bill must prevail. In
considering the position of Stevenson in this
application, five separate sections of the Act
require examination. His argument with respect to
section 3 has been earlier dealt with and need not
be further spoken to.
18 Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d)
603.
19 Ridge v. Baldwin and Others, [1964] A.C. 40 (H.L.).
20 MacKay v. The Queen, [1980] 2 S.C.R. 370; 114 D.L.R.
(3d) 393.
Section 7, on its face, would purport to render
the discontinuance of employment, that is to say,
to remove a person from the rolls of those actively
employed and to place him upon the rolls of those
mandatorily retired from employment, by reason
of age, a practice prohibited by the Act. This,
however, cannot be said to be an absolute prohibi
tion, but must be read in conjunction with the
qualifications contained in section 14 and, specifi
cally, in paragraph (c) thereof. Assuming for the
moment that paragraph 14(c) is an operative
enactment, notwithstanding the Bill of Rights,
then section 7 confers on an employee only a
qualified and restricted right. If, on the other
hand, paragraph 14(c) is inoperative, as the appli
cant argues, then section 7, from that point of
view, is absolute.
As I interpret section 9 of the Act, I do not view
the arguments advanced by the applicant in rela
tion thereto to be relevant. That section would
appear to me to be restricted to the internal rela
tionships which exist between an employee organi
zation, or union, and its members and such inter
nal policies, or by-laws, which such union may
have, which might tend to discriminate against a
member on any of the prohibited grounds, the
result of which might be that the member in, for
example, a closed-shop situation, could be unable
to continue in his normal employment. I might
observe in passing that when the question was put
directly to the applicant's counsel, he was not able
to inform the Court that his client's membership in
his union, CALPA, would be in any way adversely
affected by his being placed on mandatory retire
ment or would he cease to be a member of that
organization. Even if it could be argued that the
section were otherwise relevant, the "normal age
of retirement" provision appearing in subsection
(2) thereof (which will be considered, post, when
examining the implications of paragraph 14(c))
may well constitute an exclusionary factor insofar
as section 9 is concerned.
Neither would I consider section 10 to be ma
terial to the applicant's position. As I see this
section, it does not address a retirement situation
but rather concerns itself with the initial hiring
procedures and practices, as well as training and
similar matters consequent upon hiring. "Any
other matter relating to employment or prospective
employment", as referred to in paragraph (b)
thereof, I would read ejusdem generis to the words
immediately preceding.
The significant substantive issue before the
Court is the position taken by the applicant that
paragraph 14(c) of the Canadian Human Rights
Act is rendered inoperative by the overriding
provisions of the Bill of Rights in that it infringes
upon his right to equality before the law because
paragraph 14(c) is, itself, an act of discrimination
purporting as it does, in the contention of the
applicant, to discriminate against him in the work
place by arbitrarily denying to those who, as a
group, have reached the age of retirement equality
with those who, as a group, have not yet reached
the age of retirement, thus creating two distinctive
and identifiable groups, otherwise equal except as
to age but treated differently for that particular
reason.
Succinctly put, the applicant argues that para
graph 14(c) arbitrarily denies to him the protec
tion granted by section 7 and must, accordingly, be
declared inoperative.
In my view, the argument that section 7 confers
upon any citizen an absolute protection from any
act of discrimination cannot be sustained. If that
were the case, much of Part I of the Canadian
Human Rights Act would be inoperative. Section 9
opens with those critical words, "It is a discrimina
tory practice", yet subsection (2) thereof contains
an exceptive qualification. Sections 11, 12 and 13
are similarly restricted. Sections 15, 16 and 17
specifically exempt certain activities from what
would otherwise be deemed to be discriminatory
practices under the Act.
What section 7 does, in fact, do is to enunciate a
principle in statutory form just as does, for exam
ple, subsection 11(1). What paragraph 14(c) does
is to define, also in statutory form, one of the
parameters which Parliament has declared must
be applied to section 7, just as do, for example,
subsection (2) and succeeding subsections of sec
tion 11. Subsection 11(1) is in terms equally abso
lute to those appearing in section 7 but it would
require a bold pen to write "inoperative" to those
subsections on the basis of the argument advanced
by the applicant.
If, indeed, paragraph 14(c) could be construed
as creating two separate groups, this, in itself,
would not necessarily be fatal. It has been held in
R. v. Burnshine 21 that such legislation may well be
valid if it is enacted for the purpose of achieving a
valid federal objective and, further, that the
burden lies upon him who would have the section
declared inoperative to satisfy the court that by
means of the enactment in question, Parliament
was not seeking to achieve such an objective. Nei
ther is it necessary, in order to attain equality
before the law, that every individual be treated in
the identical manner as every other individual
unless their respective situations be identical;
where a distinction lies in the statutory treatment
accorded different individuals, it is not offensive to
the Bill of Rights when there can be established a
logical connection between the basis for the dis
tinction and the consequences which flow from it.
The expression, "valid federal objective" does
not appear either in the Bill of Rights or in the
Canadian Human Rights Act, but is rather of
judicial creation as an attempt to describe an
appropriate criterion. It is described, rather than
precisely defined, in the case law. McIntyre J., in
MacKay v. The Queen, 22 at [page 406 S.C.R.,]
page 423 D.L.R.:
The problem arises however when we attempt to determine an
acceptable basis for the definition of such a separate class, and
the nature of the special legislation involved. Equality in this
context must not be synonymous with mere universality of
application. There are many differing circumstances and condi
tions affecting different groups which will dictate different
treatment. The question which must be resolved in each case is
whether such inequality as may be created by legislation affect
ing a special class—here the military—is arbitrary, capricious
or unnecessary, or whether it is rationally based and acceptable
as a necessary variation from the general principle of universal
application of law to meet special conditions and to attain a
necessary and desirable social objective.
21 [1975] 1 S.C.R. 693; 44 D.L.R. (3d) 584.
22 MacKay v. The Queen, [1980] 2 S.C.R. 370; 114 D.L.R.
(3d) 393.
The concept, as thus described, is not inconsist
ent with the general approach taken by Laskin
C.J.C. in his dissenting opinion, as expressed at
[pages 375-376 S.C.R.,] page 398 D.L.R.:
Special treatment and special provision for the regulation of the
armed forces in their character as such represents a reasonable
classification which, so long as there is no irrelevant discrimina
tion in the regulation, may well be compatible with the Canadi-
an Bill of Rights.
And Ritchie J., who delivered the majority deci
sion of the Court, states at [page 400 S.C.R.,]
page 418 D.L.R.:
It will therefore be seen, as I have said, that the National
Defence Act is dealing with a particular class of individuals
and, as it is enacted for the purpose of achieving a valid federal
objective, the provisions of s. 1(b) of the Bill of Rights do not
require that its provisions contain the same requirements as all
other federal legislation. (See Prata v. The Minister of Man
power and Immigration ...) 23
While MacKay dealt with a court martial situa
tion under the National Defence Act, the princi
ples enunciated therein are applicable to the
instant case. Where the legislation would appear
on its face to be discriminatory, it must first be
examined in its own context to ascertain the
rationale for the apparent discrimination as be
tween two identifiable classes or groups. Is the
distinction reasonable and relevant? Is it rationally
based rather than capricious and arbitrary? Is the
variation from the norm of universality of applica
tion reasonably necessary to meet the special con
ditions dictated to attain a necessary and desirable
social objective?
If these three questions can be answered affir
matively then it may be held that any apparent
discrimination contained in the legislation is not
incompatible with the Bill of Rights, falling, as it
then will, within the broad parameters of valid
federal objective.
Unquestionably, paragraph 14(c) does create
two distinct groups, the one group being composed
of those whose employment has been terminated
because the individual members thereof have
attained the age of retirement normally attribut
able to employees working in positions similar to
23 [The Prata case is reported at] [1976] 1 S.C.R. 376; 52
D.L.R. (3d) 383.
those occupied by members of the group and the
other group, the individual members of which have
not yet attained that age.
In today's social context, retirement can be con
sidered to be a normal incident of employment.
Our social structure recognizes this, in that, for
instance, the state, which is essentially the collec
tive community of the nation, provides for the
availability of retirement or pension funds for not
only its own employees but, as well, for employees
generally when they attain the stipulated age of 65
years. Most corporate employers have similar
plans to cover the twilight years of their employees
independent of, and in addition to, the scheme
provided by the state. Air Canada, the applicant's
long-time employer, was one such corporate
employer. Indeed, the applicant's own employee
organization, or union, of which the applicant was
and continues to be an active member and which
speaks in the industry for and on behalf of airline
pilots, including the applicant, has not only accept
ed but as well, endorsed the pension-retirement
programme of the employer thus underlining the
concept that, insofar as airline pilots are con
cerned, as a separate group, the age of 60 is the
normal age of retirement of members of that group
and, as a corollary thereto, they, upon attaining
that age, as well become entitled to certain ben
efits which are not available to their fellow
employees who have not yet attained that age.
There is no magic attached to the selection of
the age of 60 as an appropriate retirement age at
which an airline pilot should retire. It is arguable,
as in the case of the applicant, that physically and
emotionally he is as competent a pilot now as he
may have been 20 years ago. It is also arguable
that there are, as well, pilots who may have been
required to cease such employment well before
attaining that age for physical or emotional rea
sons. However, the employer, in concert with the
employee organization, has deemed it desirable
that a "normal age of retirement" should be desig
nated and determined and this they have fixed at
60 years.
Bearing in mind that the onus lies upon him who
would argue that the legislation in question is
inoperative in that it is not designed to attain a
valid federal objective, he must convince the Court
that any distinction created by the legislation is
not reasonable or relevant, is not rationally based,
but rather capricious and arbitrary or is not a
reasonably necessary variation from the norm of
universality. This, in my opinion, he has failed to
do.
On the contrary, I would be of the view that the
grouping created by the establishment of a normal
age of retirement, as it applies to the applicant, is
both reasonable and relevant and is, within the
contemporary social context, both necessary and
reasonable to attain a desirable social objective,
that is, the orderly retirement from the work force,
with dignity and some degree of financial security,
of those who have devoted the best of their work
ing years to the establishment of the way of life of
which we are all beneficiaries, while, at the same
time, providing the opportunity for those of that
other group, who have not yet reached that normal
age of retirement, to progress upward in their
respective fields of employment and to enable
them to make their own contribution to the
enhancement of that way of life. There can be no
question but that the attainment of this end is a
valid federal objective. That being the case, it
cannot be argued that paragraph 14(c) is incom
patible with the Bill of Rights and, hence, I would
be of the view and so hold that paragraph 14(c) of
the Canadian Human Rights Act is not inopera
tive but is in full force and effect.
Accordingly, I would confirm the respective
decisions of the Commission dated March 23,
1982 and May 20, 1982 and dismiss the applica
tion of the applicant herein.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.