Mcallister v. Maritime Employers Association, docket T-191-96

     T-191-96

B E T W E E N:

WENDELL McALLISTER

                                     Applicant

- and -

CHARLES LAWSON

                                     Applicant

- and -

     MARITIME EMPLOYERS ASSOCIATION

                                     Respondent

- and -

STEAMSHIP CHECKERS AND CARGO

REPAIRMEN, WEIGHERS AND SAMPLERS OF

THE PORT OF SAINT JOHN, LOCAL 1764,

INTERNATIONAL LONGSHOREMAN'S

ASSOCIATION

                                     Respondent

     REASONS FOR ORDER

     (Delivered from the bench at St-John, N.B.,

     February 13, 1997, as edited)

ROTHSTEIN J.:

     These reasons apply to both matters disclosed in the style of cause. It was agreed that the facts in each file would be treated as common to both matters. The matter involves mandatory retirement at age 65. On December 15, 1994 the Maritime Employers Association and the applicants' union, Steamship Checkers and Cargo Repairmen, Weighers and Samplers of the Port of Saint John, Local 1764, International Longshoreman's Association, signed a collective agreement providing for mandatory retirement at age 65 subject to certain exceptions.

     The applicants were checkers at the port of Saint John. McAllister was 65, Lawson was 77. As a result of the collective agreement they were terminated on December 31, 1994 on account of their age. In January 1995, they filed complaints of age discrimination with the Canadian Human Rights Commission under sections 3(1), 7, 9(1) and 10 of the Canadian Human Rights Act. On December 19, 1995, the Commission dismissed their complaints, finding that they had reached the normal age of retirement within the meaning of paragraph 15(c) of the Canadian Human Rights Act.¹

     The Commission's investigator, in her report of October 26, 1995 referred to the applicants' complaints, the respondents' answers, and the applicants' replies. There is extensive reference to certain pension plans. The investigator's conclusion and recommendation leading to the dismissal of the applicants' complaints appear to be based on the following evidence.

     First, the collective agreement covering the applicants stipulates that employees 65 years of age or older with at least 20 years of eligible union membership are to retire in the month they reach age 65. Employees 65 years or older as of December 1994 were to retire on December 31, 1994. Employees who are 65 years or more and do not have 20 years of membership in the union may remain employed until they reach the age of 71, or attain 20 years of union membership, whichever comes first. It appears that the 20-year membership reference is related to maximizing the pension benefits available to employees.

     Second, age 65 is said by the respondents to be the normal age of retirement for employees employed in longshoring in major Canadian western and eastern ports.

     Third, there is reference in the pension plan documents that age 65 is the "normal retirement age" or "normal retirement date". The plans also provide for later retirement in order to maximize an employee's pension benefits.

     The applicants' say that the collective agreement contemplates that some employees will work after reaching age 65. Similarly, they say the pension plans also recognize that some employees will work after reaching age 65. They say these documents are not persuasive that the normal age of retirement is age 65. As to the evidence of the practice at other ports, they say that this only consists of bald assertions that age 65 was the normal retirement age at those ports. The applicants also submitted other reasons why the Commission in their view was in error in dismissing the applicants' complaints. It is not necessary to address those reasons here.

     As a result of oral submissions made by applicants' counsel about the weakness of the respondents' evidence relating to the practice at other ports and comments by the Court, a retired representative of the respondent union who was present in court realized that he was in possession of some correspondence between the union and the Commission that was not before the Court. Counsel for the respondent union disclosed those documents shortly after commencement on the second day of argument.

     The documents consist of a letter listing specific local unions at ports across Canada that maintain that the normal retirement age is 65. Another letter lists 20 employees at Saint John and their age at retirement, apparently prompted by representations of the applicants, that at Saint John a number of employees had worked after they reached age 65.

     The applicants had never seen this correspondence. They say it places an entirely different light on the case before the Court. They submit there was an obligation on the investigator to disclose this correspondence, and in not doing so, principles of procedural fairness or natural justice had been denied them. They rely on Cashin v. Canadian Broadcasting Corp., [1984] 55 N.R. 112 in which Mahoney J.A. states at page 113-114:

The investigator, correctly in my view, saw the issue to be principally whether the refusal to renew had been bona fide and not simply whether the occupational requirement was itself bona fide. He met with the applicant once. He met with CBC officials twice. He conducted numerous telephone interviews. While the applicant had the opportunity to tell her own story and clearly has a general notion of the points made against her, she was refused the actual evidence and had no opportunity to controvert specific evidence against her.

...

In the circumstances of this case, the requirements of natural justice were not met. I do not see how the applicant could be given a fair opportunity to meet the case against her without being given an opportunity to confront directly particular evidence against her and to test the credibility of its proponents.

     There is no obligation on the Commission to systematically disclose to a party every document obtained from another party. It may be that disclosure of the investigator's report would provide sufficient information to enable a party to rebut adverse comments. However, as Décary J.A. noted in Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (C.A.) at 14:

. . .if the Commission were to decide to continue its general practice of not disclosing comments, it will still have to examine each case individually and practise great vigilance so as to avoid a party in a particular case, such as the case at bar, not receiving disclosure of comments that are such as should have been brought to that party's attention. It would seem to me that it would be in the Commission's interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. Otherwise, and here I am adopting the views of Mahoney J. in Labelle, the Commission will always be exposed to an application for judicial review "because it will always be prima facie arguable that the complainant was not made aware of, and hence was denied a fair opportunity to meet, the whole of the contrary case".

     Clearly, unfairness will arise if the Commission fails to disclose material that is relevant to an issue central to a party's claim. The central issue in the present case is whether retirement at 65 is a practice enforced for employees working in positions similar to the applicants' at all other ports in Canada. The investigator's report says that the union representative stated that the normal retirement age is 65 years and that this policy "is enforced in all the major eastern Canadian ports". The report does not identify any material or any specific fact that caused the investigator to rely on this statement. Certainly the individual letters do not provide anything further on the issue of enforcement. I do not think the Court should prescribe the necessary contents for specific decisions of the Commission. However, it seems somewhat unsatisfactory for a decision to make reference only to unsupported allegations as the basis for a determination central to the decision. While it appears that I have not seen all the material before the investigator, and in this respect the record is unsatisfactory, I believe there must have been something more than the bald assertion to which she made reference in her report about the enforcement of retirement practices at other ports. If she did not or if the only material she had were the letters from the union to the Commission produced at the hearing before me, there would potentially be a problem with recommending the dismissal of the complaint simply on the strength of the letters alone. If there was material to support the invesitgator's assertions, either the report should have referred to it or the actual material itself should have been provided to the applicants. In either case, the applicants have not had an opportunity to contest the particulars that appear to have caused the investigator to rely on the statements of the union representatives.

     Therefore, I conclude that in the particular circumstances here, the letters and other materials that the investigator must have relied on in making statements about the retirement age and enforcement practices at other ports, should have been provided to the applicants.

     I echo the words of Décary J.A. that it would seem to be in the best interest of the Commission that the parties exchange their respective comments. Had that practice been followed, the difficulty that has arisen in this case could have been avoided.

     It is not necessary to deal with the other arguments of the applicants. The decisions of the Commission to dismiss the applicants' complaints are quashed. The matters are remitted to the Commission for redetermination.

     If the Commission designates an investigator, it should be a different individual than the one who originally made the recommendation upon which the Commission acted to dismiss the applicants' complaints. The parties should be given access to the Commission's record, and may adduce such further evidence as they consider necessary.

     The applicants were terminated on December 31, 1994. The Commission took eleven months before dismissing the complaints. The Commission has been notoriously slow in many of its proceedings and the Court expects that this redetermination will take place expeditiously. All counsel have undertaken to cooperate and make themselves available to the extent necessary so that the redetermination will not be delayed.

     Counsel for the applicants asks for costs against the respondent union. Exceptional circumstances must be demonstrated pursuant to Rule 1618. While it is unfortunate that the undisclosed documents only were revealed today, it is not clear there was an obligation on the respondent union to do so. The process under Rules 1612 and 1613 is for parties to request the record from the tribunal. While that was done in this case, and, I am told, the request was ignored, the process then is to apply to the Court for an order requiring the tribunal to deliver up its record. That was not done. In the circumstances, I do not think it would be appropriate to award costs against the respondent union. There will therefore be no order as to costs.

     Marshall Rothstein

    

     J U D G E

EDMONTON, ALBERTA

MARCH 6, 1997

__________________

     ¹      The provisions relied on under the Canadian Human Rights Act in this proceeding are as follows:
         3. (1)      For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
         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 organization 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
             (c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual.
         10. It is a discriminatory practice for an employer, employee organization or organization of employers
             (a) to establish or pursue a policy or practice, or
             (b) to enter into an agreement affecting recruitment, referral, 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.
         15. 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;