Date:
20120717
Docket: A-107-11
Citation: 2012 FCA 209
CORAM: PELLETIER
J.A.
LAYDEN-STEVENSON J.A.*
GAUTHIER
J.A.
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Appellant
and
ROBERT
NEIL KELLY, GEORGE VILVEN, CANADIAN HUMAN RIGHTS COMMISSION, and AIR CANADA
Respondents
ATTORNEY GENERAL OF CANADA
Respondent
(as of right
Under section 57 of
The Federal Courts Act)
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
This
appeal deals with whether paragraph 15(1)(c) of the Canadian Human
Rights Act, R.S.C. 1985 c. H-5 (CHRA), which allows for
discrimination on the basis of age, can be demonstrably justified as a
reasonable limitation prescribed by law pursuant to s. 1 of the Canadian
Charter of Rights and Freedoms , Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, [the Charter].
Paragraph 15(1)(c) permits mandatory retirement at the normal age of
retirement for persons occupying similar positions.
[2]
The
Supreme Court considered the issue of mandatory retirement in the case of McKinney
v. University of Guelph, [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122 [McKinney ]. In that case, the Court decided that a particular provision of the Ontario Human Rights Code, 1981, S.O. 1981, c.53 [Code], which
permitted mandatory retirement beginning age 65 was a breach of the
constitutional protection against age-based discrimination. However, the Court
went on to find that the provision was nonetheless constitutionally valid as a
result of being saved by s. 1 of the Charter.
[3]
Given
this decision, it is my view that the question before us is whether both the
Canadian Human Rights Tribunal (the Tribunal) which considered the complaints
of two Air Canada pilots who were forced to retire at age 60, and the Federal
Court, which judicially reviewed the Tribunal’s decision, were bound to follow McKinney
in disposing of the constitutional challenge to paragraph 15(1)(c) of the CHRA.
For the reasons that follow, I find that, according to the doctrine of stare
decisis, McKinney was a binding precedent that the Tribunal and
the Federal Court ought to have followed. I would therefore allow the appeal,
set aside the decision of the Federal Court and return the matter to the
Tribunal with a direction to dismiss the complaints.
FACTS
[4]
George
Vilven and Robert Neil Kelly (the Pilots) are two former Air Canada pilots who were forced to retire at age 60 due to the mandatory retirement
provisions in both their collective agreement and in their pension plan.
[5]
Both
filed complaints with the Canadian Human Rights Commission (the Commission) as
a result of their mandatory retirement. Mr. Vilven filed his complaint against
Air Canada in 2004 while Mr. Kelly filed his complaint against both Air Canada
and the Air Canada Pilots Association (the Association) in 2006. The
Commission referred both complaints to the Tribunal which heard them together
in 2007.
[6]
At
the Tribunal hearing, Air Canada and the Association relied on the exception to
the prohibition against age-based discrimination in the employment context,
which is found at paragraph 15(1)(c) of the CHRA. The provision
states as follows:
|
15. (1) 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;
|
15. (1) Ne
constituent pas des actes discriminatoires :
[…]
c) le fait de
mettre fin à l’emploi d’une personne en appliquant la règle de l’âge de la
retraite en vigueur pour ce genre d’emploi;
|
[7]
The
Pilots, in turn challenged the constitutionality of this provision.
[8]
The Tribunal dismissed the Pilots’ constitutional challenge: Vilven
v. Air Canada; Kelly v. Air Canada and Air Canada Pilot’s Association, 2007
CHRT 36. It found that 60 was the normal retirement age for persons working in
similar positions, so that the Pilots’ mandatory retirement was not a
discriminatory practice within the meaning of the CHRA. The Tribunal
also found that paragraph 15(1)(c) did not violate the guarantee of
equal treatment found at s. 15 of the Charter. As a result, the
Tribunal did not have to decide if paragraph 15(1)(c) could be saved
under s. 1 of the Charter.
[9]
The
Pilots sought judicial review of the Tribunal’s decision. In a decision
reported as Vilven v. Air Canada, 2009 FC 367, [2009] F.C.J. No. 475 [Vilven],
the Federal Court found that paragraph 15(1)(c) violated s. 15 of the Charter
and returned the matter to the Tribunal for a decision as to whether the
provision could be justified under s. 1 of the Charter.
[10]
The
Tribunal resumed its examination of the Pilots’ complaint. In a second decision
reported as Vilven v. Air Canada; Kelly v. Air Canada and Air Canada Pilots
Association, 2009 CHRT 24, the Tribunal decided that paragraph 15(1)(c)
was not saved by s. 1 of the Charter.
[11]
The
second decision of the Tribunal was also the subject of an application for
judicial review. In a decision reported as Air Canada Pilots Association v.
Kelly, 2011 FC 120, [2011] F.C.J. No. 152, [Kelly], the Federal
Court found that paragraph 15(1)(c) was not saved by s.1 of the Charter.
However, on the issue of remedy, the Federal Court declined to grant a
declaration of invalidity with respect to paragraph 15(1)(c) on the
basis that, absent a finding of error on the part of the Tribunal, the Court’s
remedial jurisdiction found at s. 18.1(3) of the Federal Courts Act
R.S.C. 1985, c. F-7, was limited, in the case of a respondent, to dismissing
the application for judicial review.
[12]
The
Association appealed from the Federal Court’s finding that paragraph 15(1)(c)
of the CHRA was not saved by s. 1 of the Charter, while the
Pilots cross-appealed from the Court’s refusal to grant a declaration of invalidity.
In support of their position with respect to a declaration of invalidity, the
Pilots also filed a notice of constitutional question with respect to paragraph
15(1)(c) of the CHRA. As a result, the Attorney General of
Canada (the Attorney General) participated in the appeal as of right, pursuant
to s. 57(4) of the Federal Courts Act.
THE ISSUES RAISED BY THE APPEAL
[13]
In
its Memorandum of Fact and Law, the Association attacks two aspects of the
Federal Court’s decision: the finding that paragraph 15(1)(c) did not
minimally impair the Pilots’ right to be free from discrimination, and the
finding that the benefits achieved by paragraph 15(1)(c) were not
proportional to its deleterious effects. Air Canada adopted the Association’s
position.
[14]
In
effect, the Association challenged the Federal Court’s application of the test
set out in the Supreme Court of Canada decision R. v. Oakes, [1986] 1
S.C.R. 103, [1986] S.C.J. No. 7, to the facts of the case. In doing so, the
Association relied heavily on the Supreme Court’s decision in McKinney
but stopped short of arguing that the Federal Court was bound by that case.
[15]
The
Attorney General, on the other hand, took the position that the McKinney decision was binding authority and that the Federal Court erred in not
following it. Even though the Attorney General was a late addition to the
litigation, his argument with respect to the binding effect of the McKinney decision was not new. Both the Tribunal and the Federal Court had
considered McKinney and its surrounding jurisprudence in their
decisions, in one capacity or another.
[16]
On
the issue of the cross-appeal, the Attorney General agreed with the Pilots
that, assuming the correctness of the Federal Court’s decision on the merits of
the s. 1 argument, the latter erred in holding that it lacked the jurisdiction
to grant a declaration of invalidity.
[17]
The
Pilots supported the Federal Court’s decision on the merits in all respects but
argued that it had erred with respect to its remedial jurisdiction.
ANALYSIS
[18]
As
I have already indicated, I believe that the issue that effectively disposes of
the appeal is whether McKinney was binding on the Tribunal and on the
Federal Court. For the reasons that follow, I believe that it is binding, and
as a result, that both the Tribunal and the Federal Court erred in concluding
that paragraph 15(1)(c) of the CHRA was not saved by s.1 of the Charter.
This conclusion disposes of both the appeal and the cross-appeal.
The Tribunal’s analysis of McKinney
[19]
As
indicated earlier, McKinney was briefly considered in the Tribunal’s reasons.
The Tribunal noted that, in McKinney, the Supreme Court accorded a high
degree of deference to the legislator on the basis that, in a democratic
society, complex social questions on which expert opinions were divided were
best left to the legislature.
[20]
The
Tribunal then considered jurisprudence that did not follow McKinney. It
cited a recent arbitral decision, CKY-TV v. Communications, Energy and
Paperworkers Union of Canada, Local 816 (Kenny Grievance), 2008 175 L.A.C.
(4th) 29, [2008] C.L.A.D. No. 92, in which the constitutionality of
paragraph 15(1)(c) of the CHRA was challenged. The arbitrator
found that the McKinney decision was based on contextual assumptions that
were not borne out by the expert evidence that was put before him. As a
result, the arbitrator did not follow McKinney.
[21]
The
Tribunal also referred to two other cases that indicated that the social and
economic context had changed sufficiently since McKinney was decided so
as to render that decision inapplicable to the present circumstances: Association
of Justices of the Peace of Ontario v. Ontario (Attorney General), (2008),
92 O.R. (3d) 16 (Ont. Sup. Ct), and Greater Vancouver Regional District
Employees Union v. Greater Vancouver Regional District, 2001 BCCA 435,
[2001] B.C.J. No. 2026.
[22]
Having
considered this jurisprudence, and without ever addressing the question of
whether it was bound by McKinney, the Tribunal proceeded on the basis
that it was not, and went on to analyze the constitutionality of s. 15 (1)(c)
under s.1 of the Charter.
The Federal Court’s analysis of McKinney
[23]
In
sharp contrast to the Tribunal’s decision, the Federal Court conducted a
detailed analysis as to why McKinney did not apply to the case before it.
[24]
The
first reason put forward by the Federal Court for not following McKinney was the difference in the statutory provisions in question. Among these
was the difference in the legislative history and objectives. In the Court’s
view, the objectives of the legislature in enacting the impugned portions of
the Code included avoiding “the potential for delayed retirement and
delayed benefits” as well as accounting for “the effect on hiring and personnel
practices and the impact on youth unemployment”: see Kelly, cited above,
at para. 110. In contrast, the Federal Court described the objective of
paragraph 15(1)(c) of the CHRA as allowing “the issue of a
mandatory retirement age in the private sector to be negotiated between
employers and employees”: see Kelly, cited above, at para. 111.
[25]
In order to
simplify the analysis which is set out later in these reasons, I propose to
deal with the Federal Court’s comments on the difference in the legislative
provisions at this point.
[26]
I
believe that the following statement, found at paragraph 96 of the Supreme
Court’s reasons, is a fuller statement of the Ontario legislature’s objectives in
drafting the Code as it did:
As already mentioned,
the Legislature was not operating in a vacuum. Mandatory retirement has long
been with us; it is widespread throughout the labour market; it involves 50 per
cent of the workforce. The Legislature's concerns were with the ramifications
of changing what had for long been the rule on such important social issues as
its effect on pension plans, youth employment, the desirability of those in the
workplace to bargain for and organize their own terms of employment, the
advantages flowing from expectations and ongoing arrangements about terms of
employment, including not only retirement, but seniority and tenure and,
indeed, almost every aspect of the employer-employee relationship. These issues
are surely of "pressing and substantial [concern] in a free and democratic
society".
In my view, there is no
meaningful distinction to be drawn with respect to the objectives of the Code
and the CHRA.
[27]
The
Federal Court went on to note another difference between the two legislative
provisions, which is the mechanism for deciding the age at which mandatory
retirement becomes permissible. In the case of the Code, the age at
which the protection against age-based discrimination is lost is defined by
statute as age 65. In contrast, in the CHRA, Parliament “elected to
delegate the choice of age at which employees will cease to enjoy the
protection of the CHRA to employers employing a particular class of
workers”: see Kelly, cited above, at para. 112.
[28]
I
agree that the determination of the age at which mandatory retirement is
allowable is arguably a material difference between the two legislative
provisions. But it is important to keep in mind that both provisions are
permissive; they permit mandatory retirement, they do not require it. The
Federal Court was inclined to view paragraph 15(1)(c) as putting the
determination of the age of mandatory retirement in the hands of employers: see
Kelly, cited above, at para. 112. The difference between the two
provisions lies in the determination of the age at which it becomes
permissible, not in the mechanics of its implementation. Under one legislative
scheme or the other, mandatory retirement will normally either be imposed by
the employer, or will be a term of a collective agreement negotiated between
the employer and the employees’ bargaining agent. In the case of senior
employees, there could be individual agreements as to the date of retirement.
There is therefore no distinction between the two provisions in terms of how
mandatory retirement is implemented. The relevant difference lies rather in
the determination of the age at which it becomes permissible.
[29]
The
Federal Court found a further distinction between the two legislative
provisions in terms of an employee’s ability to know whether his or her
mandatory retirement is consistent with the relevant human rights legislation. In
the case of the Code, the age threshold is set by legislation. In the
case of the CHRA, the Federal Court was of the view that employees could
not easily know the age at which they could be subject to mandatory retirement:
In order to understand his or her rights, a
federally regulated employee would have to know which positions were “similar
to the position of that individual”. This would require the employee to
properly identify the appropriate comparator group. This is not an easy task,
even for legally trained individuals familiar with human right principles.
Kelly, cited above, at para. 119
[30]
With
respect, the Federal Court has confused two issues: an individual’s knowledge
of the factual circumstances which may give rise to a claim that his or her
rights have been violated, and the legal analysis required to determine if
those rights have, in fact, been violated. Employees in particular occupations
move from one employer to another, bringing with them their knowledge of
employment practices, which they share with other employees who have knowledge
of other workplace practices. Unions who negotiate for a particular
occupational group make it their business to know what the norm is with respect
to the terms and conditions of employment for that group so as to bargain
collective agreements which are equal to or better than that industry’s norms.
It would be a rare case in which an employee in a given occupational group was
unaware of either the normal retirement age for that group or the range of the
variation on that issue as between employers.
[31]
This
is a different question from that of determining the appropriate comparator
group for the purposes of establishing discrimination. In order to bring a
complaint, employees do not have to engage in the legal analysis which a
tribunal will employ in determining whether they have been victims of
discrimination.
[32]
The
Federal Court also noted that because paragraph 15(1)(c) of the CHRA
permits mandatory retirement at an age less than 65, its adverse effects will
be greater on those whose labour force participation has been shorter or
interrupted, primarily women and immigrants.
[33]
No matter the age at which mandatory retirement becomes permissible,
persons with shorter or interrupted labour force participation will be
disadvantaged. Depending upon where the line is drawn, the composition of the
group that is adversely affected will vary, perhaps to the point of amounting
to systemic discrimination. However, the presence of a group of persons who
are differentially adversely affected is not a point of distinction between the
different ages at which mandatory retirement becomes permissible, but rather is
a point of distinction between mandatory retirement at any age and no mandatory
retirement at all.
[34]
In
summary, it is my view that of all the factors identified by the Federal Court
related to the difference in wording of the CHRA and the Code,
only the difference in the manner of determining the age at which mandatory
retirement becomes permissible is a possible point of distinction between this
case and McKinney.
[35]
The
Federal Court also invoked three other grounds which, in its view, set this
case apart from McKinney. First among these is the argument that the
Supreme Court itself did not consider its decision in McKinney to be the
last word on the subject of mandatory retirement. The Federal Court noted
comments of the majority in McKinney highlighting the uncertain
consequences of abolishing mandatory retirement on other aspects of workplace
organization. Particular emphasis was placed on the following statement: “we do
not really know what the ramifications of these new schemes will be and the
evidence is that it will be some 15 or 20 years before a reliable analysis can
be made”: Kelly, cited above, at para. 137 (original emphasis).
The Federal Court was of the view that the issue had been left open to be
revisited at a later point in time when reliable evidence became available with
respect to the actual experience in those jurisdictions that had abolished
mandatory retirement.
[36]
The
Federal Court also identified the differences in the evidentiary record as a
reason for distinguishing the case at hand from McKinney. The
principal difference in the evidentiary record was the presence of expert
reports that addressed the effects of abolishing mandatory retirement in
jurisdictions that had done so. In short, the Federal Court found that there
were “new facts which call into question the factual underpinning of the
Supreme Court’s decision in McKinney”: Kelly, cited above, at
para. 146.
[37]
Finally,
the Federal Court identified new developments in public policy as a further
reason for not following McKinney. The Court observed that La Forest J.
himself, in his capacity as Chair of the Canadian Human Rights Review Panel,
had participated in the writing of Promoting Equality: A New Vision
(Ottawa: Canadian Human Rights Act Review Panel, June 2000). That report,
while recognizing that the issue required further study, recommended that there
should no longer be blanket exemptions for mandatory retirement in the CHRA.
In the Federal Court’s view, this report reflected the change in societal
attitudes to mandatory retirement since McKinney was decided.
[38]
In
addition, the Federal Court reviewed the jurisprudence of various courts on the
subject of mandatory retirement, including many of the same cases referred to
by the Tribunal, in order to show that judicial attitudes to mandatory
retirement had also evolved over time.
[39]
These,
then, were the reasons given by the Federal Court for refusing to follow the
Supreme Court’s decision in McKinney.
Standard of Review
[40]
In
an appeal of a judicial review, the role of this Court is to determine whether
the reviewing court identified the proper standard of review and then applied
it correctly. In practice, this means that the appellate court applies the
normal rules of appellate review as articulated in Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235: see Dr. Q. v.
College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003]
1 S.C.R. 226, at para. 43. The scope and application of the doctrine of stare
decisis is a question of law for which the standard of review is
correctness.
Stare Decisis
[41]
The
Ontario Court of Appeal recently considered the application of stare decisis
in a similar context. In R. v. Bedford, 2012 ONCA 186, [2012] O.J. No.1296,
[Bedford], the issue was whether the Supreme Court’s decision in Reference
re ss. 193 and 195.1(1)(c) of he Criminal Code (Man.), [1990] 1 S.C.R.
1123, [1990] S.C.J. No. 52, [the Prostitution Reference], which found
those provisions to be constitutional, was binding in a subsequent challenge to
the constitutionality of those same provisions. The impugned Criminal Code, R.S.C.,
1985, c. C-46, provisions dealt with keeping a common bawdy house and communicating
for the purpose of prostitution. The Ontario Court of Appeal found that the
trial judge was free to entertain a s. 7 challenge to the bawdy house provisions
of the Criminal Code because the Supreme Court’s jurisprudence on the
principles of fundamental justice had evolved since the Prostitution
Reference was decided. As a result, the legal issues raised in Bedford with respect to whether the bawdy house provisions of the Criminal Code
were an infringement of the accused’s rights under s. 7 of the Charter
had not previously been considered by the Supreme Court.
[42]
On
the other hand, the Ontario Court of Appeal found that the s. 2 Charter challenge
to the Criminal Code’s provisions on “communicating for the purpose of prostitution”
was caught by the Supreme Court’s decision. The Ontario Court of Appeal found that
the trial judge erred in failing to follow the Prostitution Reference,
“as there was no suggestion that it [the Prostitution Reference] had
been expressly or by implication overruled by a subsequent decision of the
Supreme Court”: see Bedford, cited above, at para. 75.
[43]
The
Ontario Court of Appeal went on to find that the trial judge was wrong in
departing from the decision in the Prostitution Reference on the basis
of a re-characterization of the issue. The Court of Appeal’s comments on this
issue are apposite to the present case:
This change in perspective has not altered the ratio
decidendi of that case, which was that the communicating provision is a
reasonable limit on freedom of expression. In coming to this conclusion, the
majority applied the Oakes test based on the best information available
to them at the time. There may be good reasons for the Supreme Court to depart
from this holding for all the reasons discussed in Polowin Real Estate,
but that is a matter for the Supreme Court to decide for itself.
In our view, the need for a robust application of stare
decisis is particularly important in the context of Charter
litigation. Given the nature of the s. 1 test, especially in controversial
matters, the evidence and the legislative facts will continue to evolve, as
will attitudes, values and perspectives. But this evolution alone is not
sufficient to trigger reconsideration in the lower courts.
If it were otherwise, every time a litigant came
upon new evidence or a fresh perspective from which to view the problem, the
lower courts would be forced to reconsider the case despite authoritative
holdings from the Supreme Court on the very points at issue. This would
undermine the legitimacy of Charter decisions and the rule of law
generally.[ …] Such an approach to constitutional interpretation yields not a
vibrant living tree but a garden of annuals to be regularly uprooted and
replaced.
Bedford, cited above, at paras.
82-84.
[44]
I
adopt these views without reservation. They are dispositive of three of the
four grounds given by the Federal Court for not following McKinney.
[45]
To recapitulate, the Federal Court gave four reasons
for not following McKinney:
1. The significant differences between the
legislative provisions in issue;
2. The clear
indication in McKinney that the Supreme Court
did not intend that the decision be the final word on the subject of mandatory
retirement for all time;
3. The
differences in the evidentiary records that were before the Supreme Court and
the Tribunal; and
4. The developments in public policy that
have occurred since McKinney was decided.
[46]
The
argument that the Supreme Court itself did not consider McKinney as the
last word on mandatory retirement does not authorize a lower court to
re-litigate the issues decided in McKinney. We know from cases such as Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, that the Supreme Court can,
and does, revisit its own decisions when the circumstances call for it to do
so. To the extent that, in McKinney, the Supreme Court held the door
open to revisit the issue of mandatory retirement at a later date, it was
holding the door open for itself and not for others.
[47]
The fact that there are differences in the evidentiary records in
this case and in McKinney cannot justify departing from established
jurisprudence. If it did, every case would be binding only on the parties to
that case since, with rare exceptions, no two cases are decided on the same
evidentiary record. Such a result, particularly in Charter litigation,
is at odds with the values of certainty and finality which underlie the
doctrine of stare decisis. Similarly, the evolution of social policy
over time may justify the Supreme Court revisiting a particular issue but it
cannot justify a lower court’s failure to follow the Supreme Court’s
jurisprudence.
[48]
This
is not to say that lower courts do not have a role to play in the evolution of
the jurisprudence once the Supreme Court has spoken. Where a challenge to the
existing jurisprudence is raised, the role of the lower court is to allow the
parties to gather and present the evidence and to make the necessary findings
of fact and of credibility, so as to establish the evidentiary record upon
which the Supreme Court can decide whether to reconsider its earlier decision:
see Bedford, cited above, at para.76. The Federal Court’s lucid, well-written
decision in this case provides a basis upon which the Supreme Court can revisit
McKinney if it is disposed to do so.
[49]
That
leaves for consideration the first argument raised by the Federal Court, that
is, whether the difference in the manner of determining the age at which
mandatory retirement becomes permissible is a possible point of distinction
between this case and McKinney.
[50]
The
specific provisions in issue in McKinney were ss. 4(1) and 9(a)
of the Code. Subsection 4(1) prohibits discrimination on the basis of
age while paragraph 9(a) defines age as one that is 18 years of more,
but less than 65. The combined effect of these provisions was to deny
the protection of the Code to workers over the age of 65 in all aspects
of employment, including mandatory retirement.
[51]
The
provision in issue in this case, paragraph 15(1)(c) of the CHRA,
provides for a limited exception to age-based discrimination for individual who
have reached the normal age of retirement for employees working in positions
similar to their own.
[52]
For
our purposes, the distinction between the two provisions is that in one case,
the age at which mandatory retirement is permissible is set out in the statute
whereas in the other, it is determined by the industry practice with respect to
persons working in positions similar to that of the individual in question. The
practical consequence of this distinction is that under the CHRA, mandatory
retirement may be permissible at ages younger than age 65. It is this feature
of paragraph 15(1)(c) which attracts constitutional scrutiny.
[53]
In
form, the issue in this appeal is whether the difference in the manner of determining
the age at which mandatory retirement may be imposed takes the CHRA
outside the Supreme Court’s reasoning in McKinney. In substance, the
issue is whether a legislative provision which permits mandatory retirement at
an age less than 65 is saved by McKinney. In either case, it is
important to understand how the Supreme Court’s reasoning in McKinney
could apply to the case at hand.
[54]
The
Ontario Court of Appeal was confronted with a similar problem in Bedford in which the issue was whether the Prostitution Reference was
binding authority. The Ontario Court of Appeal began by defining stare
decisis as the requirement that “courts render decisions which are
consistent with the previous decisions of higher courts”: see Bedford, cited
above, at para. 56. The Court then quoted the following passage from Halsbury’s
Laws of Canada, Civil Procedure I, 1st Ed. (Markham, LexisNexis Canada, 2008):
To employ the
traditional terminology: only the ratio decidendi
of the prior court decision is binding on a subsequent court. The term ratio
decidendi describes the process of judicial reasoning that was necessary in
order for the court to reach a result on the issues that were presented to it
for a decision. All other comments contained
within the reasons of the prior court are termed obiter
dicta, and in essence such incidental remarks are treated
as asides. They may have persuasive value, but they are not binding. [Emphasis
added.]
Bedford,
cited above, at para. 57
[55]
The Court went on to note that the distinction
between stare decisis and obiter dicta had evolved in the
Canadian context so that there is a spectrum of authoritativeness on which the
statements of appellate courts may be placed. The Court then referred to its
own decision in R. v. Prokofiew,
2010 ONCA 423, (2010), 100 O.R. (3d) 401, at paragraph 19:
The question then
becomes the following: how does one distinguish between binding obiter
in a Supreme Court of Canada judgment and non-binding obiter?
In Henry,[R. v. Henry, 2005 SCC 76, [2005] 3
S.C.R. 309] at para. 53, Binnie J. explains that one must
ask, "What does the case actually decide?" Some cases decide only a narrow point in a specific
factual context. Other cases - including the vast majority of Supreme Court of
Canada decisions - decide broader legal propositions and, in the course of
doing so, set out legal analyses that have
application beyond the facts of the particular case. [Emphasis added]
R. v. Prokofiew, cited
above, as quoted in Bedford, cited above, at para. 58.
[56]
In
this context, the question at hand becomes: what did McKinney decide? On
what basis did the Supreme Court decide that the Code provisions
permitting mandatory retirement at age 65 were saved by s.1? Does the Supreme
Court’s reasoning apply to mandatory retirement at younger age?
[57]
Let
us therefore examine the reasoning in McKinney to see if it is limited
to the case of retirement at age 65 or older.
[58]
In
undertaking this review, one must keep in mind the nature of the question
before the Court in McKinney. At issue was the constitutionality of a
provision that allowed for mandatory retirement beginning at age 65. As a
result, it should come as no surprise that the Court’s reasons refer specifically
to retirement at age 65. The question is whether those reasons apply only to
the specific provisions before the Court in that case.
[59]
Before
beginning his analysis in McKinney, La Forest J. reviewed the history of
mandatory retirement in Canada so as to place the Charter issue in its
“proper linguistic, philosophic and historical contexts”: see McKinney, cited
above, at para. 79. La Forest J. noted that mandatory retirement at age 65 developed
as a consequence of the development of public pension plans under which
benefits were payable commencing at age 65. Private pension plans were
designed so that their benefits dovetailed with those of the public plans. As
a result, 65 became the generally accepted “normal” age of retirement.
Mandatory retirement arose in the context of this integration of public and
private pension plans.
[60]
La
Forest J. noted that “about one half of the Canadian work force occupy jobs
subject to mandatory retirement and about two thirds of collective agreements
in Canada contain mandatory retirement provisions at the age of 65, which
reflects that it is not a condition imposed on workers but one which they
themselves bargain for through their own organizations”: see McKinney, cited
above, at para. 83. In La Forest J.’s view, mandatory retirement had become
part of “very fabric of the organization of the labour market” in Canada: see McKinney, cited above, at para. 84.
[61]
In
that regard, at paragraph 83 of his reasons, La Forest J. quoted with approval
from the decision of the Ontario Court of Appeal in McKinney, reported
as (1987), 63 O.R. (2d) 1:
One of the primary objectives of s. 9(a) was
to arrive at a legislative compromise between protecting individuals from
age-based employment discrimination and giving employers and employees the
freedom to agree on a date for termination of the employment relationship.
Freedom to agree on a termination date is of considerable benefit to both
employers and employees …
[62]
This
passage highlights two elements that are important to the Supreme Court’s
analysis. The first is that any law permitting mandatory retirement at any age
involves a compromise between competing interests, namely, freedom from age-based
discrimination and the freedom of employers and employees to make mutually
beneficial decisions. The second element is the prominent place given by La Forest
J. to employer/employee self-determination in the elaboration of work place
policies.
[63]
After
these introductory comments, La Forest J. then turned to the s.1 analysis. He
examined the objectives of the legislation. After referring to the legislative
debates, he summarized the legislator’s preoccupations in the following
passage, which I quoted earlier in these reasons:
The Legislature’s concerns were with the
ramifications of changing what had long been the rule on such important social
issues as its effect on pension plans, youth employment, the desirability of
those in the workplace to bargain for and organize their own terms of
employment, the advantages flowing from expectations and ongoing arrangements
about terms of employment, including not only retirement, but seniority and
tenure and, indeed, almost every aspect of the employer-employee relationship.
These are surely of “pressing and substantial [concern] in a free and
democratic society.”
McKinney, cited above, at
para. 96
[64]
This
passage reflects the fact that the legislature did not start with a blank slate
when it enacted the Code. In the period preceding the legislation,
employers and employees had entered into a variety of arrangements that
reflected their expectations about workplace mobility and stability, based on
the existence of mandatory retirement. The legislator was anxious to protect
these mutually advantageous arrangements and was wary of interfering with them
without understanding the ramifications of such changes.
[65]
As La Forest
J. noted in his introductory comments (see paragraphs 56 to 58 above), these
arrangements usually involved mandatory retirement at age 65. However, there
were other arrangements in place in different sectors of the workplace which
reflected a different organization of the workplace. By way of example, the
Air Canada pension plan has required mandatory retirement at age 60 since
1957. Air Canada and its employees have been bargaining collectively since
1945. Mandatory retirement at age 60 has been a term of the collective
agreement since the early 1980’s: see Vilven, cited above, at para. 8.
Just as the Ontario legislature did not legislate in a vacuum, neither did
Parliament.
[66]
Moving
to the next step in the s.1 analysis, La Forest J. addressed the issue of
whether the means chosen by the legislature were rationally connected to its
objectives. He was of the view that the legislation achieved its purpose of
maintaining stability in pension arrangements and was therefore “rationally
connected to that end”: McKinney, cited above, at para.101. In his
view, there was nothing irrational in a system “that permits those in the
private sector to determine for themselves the age of retirement suitable to a
particular area of activity”: McKinney, cited above, at para. 101.
[67]
These
words accurately describe the thrust of paragraph 15(1)(c) of the CHRA
which leaves the determination of the age at which mandatory retirement is
permissible to the prevailing practice in a particular industry. I find in
them an indication that the majority of the Supreme Court was addressing its
mind to issue of mandatory retirement generally, and not specifically to the
question of mandatory retirement at age 65.
[68]
The
next issue considered in La Forest J.’s analysis was minimal impairment. In
analysing this issue, he reviewed some of the social science evidence contained
in the record, noting the conflicting predictions as to the effects of
abolishing mandatory retirement. In his view, it was not surprising that, in
light of this conflicting evidence, the legislature should adopt a cautious
approach to the issue.
[69]
La
Forest J. put his discussion of minimal impairment in context when he wrote the
following at paragraph 119 of his reasons:
It must be remembered that what we are dealing with
is not regulation of the government’s employees, nor is it government policy
favouring mandatory retirement. It simply reflects a permissive policy. It
allows those in different parts of the private sector to determine their work
conditions for themselves, either personally or through their representative
organizations. It was not a condition imposed on employees. Rather it derives
in substantial measure from arrangements which the union movement or individual
employees have struggled to obtain.
[70]
This
passage underlines La Forest J.’s sensitivity to the permissive nature of the Code
and to the choices made by labour market participants in relation to
retirement, often through the vehicle of collective bargaining. In my view, La
Forest J.’s reasoning is premised on respect for the choices made by labour
market participants themselves.
[71]
La
Forest J. then noted that a court must ultimately consider whether, on the
evidence, the legislature had a reasonable basis for concluding that the means
it had chosen impaired constitutionally protected rights as little as possible:
see McKinney, cited above, para. 123. He expressed his conclusion on
this point in the following terms:
I do not intend here to take sides on the economic
arguments, and it may well be that acceptable arrangements can be worked out
over time to take more sensitive account of the disadvantages resulting to the
aged from present arrangements. But I am not prepared to say that the course
adopted by the legislature, in the social and historical context through which
we are now passing is not one that reasonably balances the competing social
demands which our society must address. The fact that other jurisdictions have
taken a different view proves only that the Legislatures there adopted a
different balance to a complex set of competing values.
McKinney, cited above, at para. 123.
[72]
Finally,
La Forest J. found that the issue of proportionality between the measures
adopted and the impairment of the constitutional right must be approached in a
manner that respects the fact that certain types of Charter problems
lend themselves to incremental solutions. In La Forest’s view, “it is
important to remember that a Legislature should not be obliged to deal with all
aspects of a problem at once”: see McKinney, cited above, at para. 129.
This is particularly so in a case like this where protecting the rights of one
group of people necessarily affects the rights of others.
[73]
Justices
Sopinka and Cory each wrote concurring reasons agreeing with La Forest J.’s
reasons and conclusion: see McKinney, cited above, at paras. 425 and
429-430. Each of them went on to add a further element to the analysis, an
element which, in my view, reinforces the thrust of La Forest J.’s analysis.
[74]
Sopinka
J. summarized his thinking on the issue of mandatory retirement as follows:
The current state of
affairs in the country, absent a ruling from this court that mandatory
retirement is constitutionally impermissible, is the following. The federal
government and several provinces have legislated against it. Others have
declined to do so. These decisions have been made by means of the customary
democratic process and no doubt this process will continue unless arrested by a
decision of this Court. Furthermore, employers and employees through the
collective bargaining process can determine for themselves whether there should
be a mandatory retirement age and what it should be. They have done so in the
past, and the position taken by organized labour on this issue indicates that they
wish this process to continue. A ruling that mandatory retirement is
constitutionally invalid would impose on the whole country a regime not forged
through the democratic process but by the heavy hand of the law. Ironically,
the Charter would be used to restrict the freedom of many in order to promote
the interests of the few. While some limitation on the rights of others is
inherent in recognizing the rights and freedoms of individuals, the nature and
extent of the limitation, in this case, would be quite unwarranted. I would
therefore dispose of the appeal as proposed by La Forest J.
McKinney, cited above, at para. 426
[75]
Cory J. was more passionate in his defence of the
collective bargaining process:
Bargains struck whereby
higher wages are paid at an earlier age in exchange for mandatory retirement at
a fixed and certain age, may well confer a very real benefit upon the worker
and not in any way affect his or her dignity or sense of worth. If such
contracts should be found to be invalid, it would attack the very foundation of
collective bargaining and might well put in jeopardy some of the hard won
rights of labour.
The collective
agreement reflects the decision of intelligent adults, based upon sound advice,
that it is in the best interest of themselves and their families to accept a
higher wage settlement for the present and near future in exchange for agreeing
to a fixed and certain date for retirement. In those circumstances, it would be
unseemly and unfortunate for a court to say to a union worker that, although
this carefully made decision is in the best interest of you and your family,
you are not going to be permitted to enter into this contract. It is a position
that I would find unacceptable.
McKinney, cited above, at paras. 432-433
[76]
Both of these passages emphasize La Forest J.’s
belief in the wisdom of deferring to the legislature’s choices with respect to
the organization of the workplace by employers and employees.
[77]
Given all of this, what does McKinney stand for?
[78]
It is perhaps
easier to state what McKinney did not decide. McKinney did not
decide that the provisions of the Code permitting mandatory retirement
as of age 65 were saved by s. 1 of the Charter because 65 was seen as the
normal age of retirement. La Forest J.’s observation that 65 had come to be
regarded as the normal age of retirement does not figure at all in his
subsequent application of the Oakes test. It is simply a demographic
observation, the occurrence of which is explainable by reference to certain
economic factors.
[79]
Age
65, in and of itself, cannot justify a breach of s. 15 of the Charter.
The factors which justify mandatory retirement must logically apply independent
of age since one cannot justify a breach of the right to be free from age-based
discrimination by reference to age itself. Such an argument would be tautological.
[80]
In my view, what McKinney did
decide was that mandatory retirement, as an exception to the prohibition
against discrimination on the basis of age, could be justified under s. 1 of
the Charter when it is a mutually advantageous arrangement between
employers and employees which permits the workplace to be organized in a manner
that accommodates the needs of both parties. While these types of arrangements
are not limited to unionized workplaces, La Forest J. was very conscious of the
significant role that collective bargaining plays in achieving these types of
accommodations: see McKinney, cited above, at paras. 120-122.
[81]
There is nothing in McKinney that would
suggest that the analysis which resulted in the conclusion that s. 9(a)
of the Code was saved under s. 1 of the Charter does not apply to
provisions permitting mandatory retirement prior to age 65.
[82]
While
retirement at age 65 is the norm in the general workforce, there are instances
of particular occupational groups in which there are longstanding mandatory
retirement arrangements at an age other than 65. This case is but one example
of such an arrangement. There is nothing in McKinney which would force
the conclusion that such arrangements were not justified under s. 1 of the Charter
simply because the agreed upon age of mandatory retirement was less that 65.
[83]
Moreover,
the trigger by which the age of mandatory retirement is fixed does not change
the analysis in so far as the constitutional validity of a permissive mandatory
retirement provision is concerned. The trigger in the case of paragraph 15(1)(c)
of the CHRA, the normal age of retirement for a given occupation or
position, simply allows for the fact that certain occupational groups may have
negotiated arrangements based on a fixed and certain retirement date other than
age 65.
[84]
By way of example only, in the Vilven
decision, the Federal Court noted the Tribunal’s observations with respect to
mandatory retirement for pilots at Air Canada:
In this case, ACPA and
Air Canada agreed to retirement at age 60 in exchange for a rich compensation
package, including a pension plan that put Air Canada pilots in an elite group
of pensioners. Based upon the testimony of an Air Canada witness, the Tribunal
observed that employees, including Air Canada pilots, are not faced with the
indignity of retiring because they have been found to be incapable of
performing the requirements of their position or because of failing health.
Instead, "retirement at age 60 for pilots is the fully understood and
anticipated conclusion of a prestigious and financially rewarding career".
Vilven,
cited above, at para. 217
[85]
While
the issue at hand is not the validity of Air Canada’s mandatory retirement policy,
this passage does make it clear that the same mechanisms which are at play in workplaces
where mandatory retirement occurs at age 65 are also at play in workplaces where
the parties have agreed upon mandatory retirement at a younger age.
[86]
To
recapitulate, I am of the view that McKinney decided that a provision
which permits mandatory retirement is constitutionally permissible because the
existence of a fixed and certain retirement date permits the negotiation of
mutually beneficial arrangements which might not otherwise be possible. A
provision such as para. 15(1)(c) of the CHRA permits such
arrangements and would therefore come within the principles articulated in McKinney.
[87]
That
said, it may be that conditions have changed to the point where the Supreme Court
is prepared to revisit this issue. If it is, then, obviously, nothing in this
decision would prevent it from doing so.
[88]
I
therefore find that the Tribunal and the Federal Court were bound by McKinney and ought to have followed it.
CONCLUSION
[89]
The Federal Court decided in Vilven that the
Tribunal’s conclusion that age 60 was the normal age for pilots was reasonable,
see Vilven, cited above, at para. 174. Since paragraph 15(1)(c)
of the CHRA is constitutionally valid, and since the Pilot’s complaints
were caught by paragraph 15(1)(c), it follows that their complaints
should be dismissed.
[90]
I would therefore allow the appeal with costs in
this Court and in the Federal Court. I would set aside the decision of the
Federal Court, and return the matter to the Tribunal with the direction that
the complaints of Mr. Kelly and Mr. Vilven should be dismissed on the ground
that paragraph 15(1)(c) of the CHRA is constitutionally valid,
and that 60 is the normal retirement age for persons working in positions
similar to theirs.
[91]
I would also dismiss the cross-appeal with costs.
“J.D. Denis Pelletier”
“I
agree
Johanne Gauthier J.A.”
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