Respondent, a teacher, was required by her
collective agreement to retire at a fixed date following her sixty‑fifth
birthday. The Human Rights Act, however, prohibited discrimination in
employment on account of age while The Public Schools Act, which
was enacted before and consolidated after The Human Rights Act was
passed, allowed the fixing of a compulsory retirement age for teachers.
Respondent successfully sought a declaration in the Court of Queen's Bench that
mandatory retirement contravened The Human Rights Act and was
invalid, and that her employment therefore could not be terminated. The Court
of Appeal upheld that decision. At issue in this appeal was the conflict
between the provisions of The Human Rights Act and The Public Schools
Act.
Held: The appeal should
be dismissed.
The mandatory retirement provision in The Public
Schools Act was invalid in that it contravened The Human Rights
Act. The Human Rights Act, since it was passed after The Public
Schools Act, prevailed over and implicitly repealed any earlier legislation
in so far as there was conflict. The Public Schools Act of 1980 was not
specific legislation designed to reaffirm the Board's right to set a mandatory
retirement age, notwithstanding The Human Rights Act, but rather
was a mere re‑enactment and consolidation. Indeed, given the special
nature of human rights legislation, any amendment or repeal or exception to
that legislation must be by clear legislative pronouncement and not by
implication. Were it otherwise, the human rights legislation would be robbed of
its special nature and would give scant protection to the rights proclaimed.
The Human Rights Act
was legislation declaring public policy and therefore could not be avoided by
private contract. The parties could not contract out of the Act's provisions by
agreeing to article 14 of the Collective Agreement.
Cases Cited
Ontario Human Rights Commission v. Borough of
Etobicoke, [1982] 1 S.C.R. 202; Morisse v. Royal British Bank
(1856), 1 C.B. (N.S.) 67; 140 E.R. 27; Insurance Corporation of British
Columbia v. Heerspink, [1982] 2 S.C.R. 145, referred to; Winnipeg School
Division No. 1 v. MacArthur, [1982] 3 W.W.R. 342, distinguished.
Statutes and Regulations Cited
Human Rights Act, 1974 (Man.), c. 65, s. 6(1).
Public Schools Act, R.S.M. 1970, c. P250, s. 39(2).
Public Schools Act, 1980 (Man.), c. 33, s. 50.
APPEAL from a judgment of the Manitoba Court of
Appeal, [1983] 6 W.W.R. 87, 149 D.L.R. (3d) 542, dismissing an appeal from a
judgment of Deniset J. granting an application for a declaration that a
provision of a collective agreement concerning mandatory retirement was
invalid. Appeal dismissed.
Robert Simpson,
for the appellant.
Mel Myers, Q.C.,
for the respondent.
The judgment of the Court was delivered by
1. McIntyre
J.‑‑This appeal must resolve the conflict between
s. 6(1) of The Human Rights Act, 1974 (Man.), c. 65, as
amended; C.C.S.M., c. H175, which prohibits discrimination in employment
on account of age, and s. 50 of The Public Schools Act, 1980
(Man.), c. 33; C.C.S.M., c. P250, which empowers a school board to
fix a compulsory retirement age for teachers.
2. The facts may be shortly stated. The
respondent, Doreen Maud Craton, is a teacher in The Winnipeg School District
No. 1. She is employed pursuant to a collective agreement between the School
Division and the Manitoba Teachers' Society. The Collective Bargaining
Agreement contains a provision for mandatory retirement of teachers at age
sixty‑five. Mrs. Craton turned sixty‑five in January, 1983 and was
notified that her employment would be terminated as of August 31, 1983. She
applied by way of originating notice of motion in the Court of Queen's Bench
for a declaration that the mandatory retirement provision in the Collective
Bargaining Agreement is invalid because it contravenes the Manitoba Human
Rights Act, and that her employment could not be terminated by reason of
her reaching the age of sixty‑five. The respondent succeeded at trial and
on appeal (Monnin C.J.M., Hall and Huband JJ.A.) This appeal is by leave
granted November 24, 1983.
3. The relevant statutory provisions are
set out hereunder:
The Human Rights Act, 1974 (Man.), c. 65, as
amended; C.C.S.M., c. H175, s. 6(1):
6 (1) Every person has the right of equality of opportunity based
upon bona fide qualifications in respect of his occupation or employment or in
respect of training for employment or in respect of an intended occupation,
employment, advancement or promotion, and in respect of his membership or
intended membership in a trade union, employers' organization or occupational
association; and, without limiting the generality of the foregoing
(a) no employer or
person acting on behalf of an employer, shall refuse to employ, or to continue
to employ or to train the person for employment or to advance or promote that
person, or discriminate against that person in respect of employment or any
term or condition of employment;
(b) no employment
agency shall refuse to refer a person for employment, or for training for
employment, and
(c) no trade union,
employers' organization or occupational association shall refuse membership to,
expel, suspend or otherwise discriminate against that person; or negotiate, on
behalf of that person, an agreement that would discriminate against him;
because of race,
nationality, religion, colour, sex, age, marital status, physical or mental
handicap, ethnic or national origin, or political beliefs or family status of
that person.
The Public Schools Act, R.S.M. 1970, c.
P250, s. 39(2):
39 (2) The board of an area may fix a compulsory retirement age for teachers
employed by it; but the compulsory retirement age shall not be less than sixty‑five
years of age.
The Public Schools Act, 1980 (Man.), c.
33; C.C.S.M., c. P250, s. 50:
50 A school board may fix a complusory retirement age for teachers
employed by it but the compulsory retirement age shall not be less than 65
years of age.
The relevant provisions of the Collective Bargaining Agreement are
found in article 14:
14. Retirement
Date‑‑The compulsory retirement date for each teacher will be
the 31st day of August coinciding with, or next following, the date upon which
the teacher attains the age of sixty‑five years, and no teacher shall be
continued in the service of the Division beyond normal retirement age.
4. In the Court of Appeal, Monnin C.J.M.
found that there was a clear conflict between s. 50 of The Public
Schools Act and s. 6(1) of The Human Rights Act. Section 50 of The
Public Schools Act had been passed in 1980, but was to the same effect as
s. 39(2) of the 1970 consolidation (which preserved the identical language
of the original enactment in 1964) and, therefore, could not have been intended
as an exception to the provisions of The Human Rights Act. Furthermore,
human rights legislation is public and fundamental law of general application
and prevails where there is a conflict with other specific legislation unless
an exception is created. Consequently, s. 50 of The Public Schools Act
and article 14 of the Collective Bargaining Agreement were void and could not
operate to compel Mrs. Craton's retirement. Hall J.A. agreed with the Chief
Justice, adding that s. 39(2), as enacted in 1964, though repealed as part of a
general revision in 1980, was re‑enacted with no material change as s. 50
of The Public Schools Act. He said, in answer to the appellant's
contention, that the 1980 Public Schools Act was a later enactment than
s. 6(1), and therefore by implication an exception to The Human Rights Act:
I cannot accept that the
mere mechanics of repeal and re‑enactment should be determinative of the
question of whether the Human Rights Act displaces the Public Schools
Act.
Huband J.A. dissented. He would have allowed the appellant's appeal on
the basis that while The Human Rights Act would override s. 39(2) of the
old Act, the fact that the new Public Schools Act was passed in 1980,
subsequent to The Human Rights Act, reaffirmed the authority of the
Board to set a compulsory retirement age. He regarded s. 50 as specific
legislation relating only to teachers and creating a limited exception to s.
6(1) of The Human Rights Act.
5. There is no merit in the argument raised
below, but not pressed in this Court, that the parties by agreeing to article
14 in the Collective Bargaining Agreement have contracted themselves out of the
provisions of s. 6(1). The Human Rights Act is legislation declaring
public policy and may not be avoided by private contract. See: Ontario Human
Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at pp. 213‑14.
Accordingly, there is only one issue in this case: is s. 50 of the 1980 Public
Schools Act effective to create an exception to the prohibition against
discrimination on the basis of age set out in s. 6(1) of The Human Rights
Act?
6. The appellant contended that The
Public Schools Act of 1980 was not a mere re‑enactment and
consolidation of the earlier statute, but was actually specific legislation
designed to reaffirm the right of the Board to create a mandatory retirement
age for school teachers, despite the provisions of The Human Rights Act.
For this proposition, reliance was placed on Winnipeg School Division No. 1
v. MacArthur, [1982] 3 W.W.R. 342, a decision of Kroft J. of the Manitoba
Court of Queen's Bench. The case is not, in my view, of any assistance to the
appellant. It turned largely on the question of whether a school is "any
accommodation, service or facility customarily available to the public",
an issue of no significance here. In obiter Kroft J. said, at p. 356,
that:
When the Legislature in
1980 enacted the Public Schools Act, it must be assumed that it did so with
full knowledge of the provisions of the Human Rights Act.
This case, however, was decided before Heerspink, infra,
in this Court, and for the reasons stated below I do not consider that the
quoted words advance the appellant's position.
7. The record discloses, as we have seen
above, that s. 39(2) is the first statutory enactment with which we are here
concerned. Had it not been for the 1980 consolidation, which included s. 50, no
question would have arisen as to which provision would govern. Section 6(1) of The
Human Rights Act, enacted in 1974, was clearly a subsequent enactment and
an express prohibition against discrimination in employment on the basis of age
and, even setting aside the notion of any primacy for human rights legislation,
it would have prevailed and repealed s. 39(2) by implication. There is no
significant difference between the two sections, 39(2) and 50, and I am in
agreement with the majority of the Court of Appeal that the enactment of s.
39(2) as s. 50 of the 1980 consolidation cannot be considered to have repealed
s. 6(1) by implication. I am strengthened in this view by the words of William
J. in Morisse v. Royal British Bank (1856), 1 C.B. (N.S.) 67; 140 E.R.
27, at p. 35:
The only point which
presented any plausibility of argument was, the suggestion that the 10th
section of the 7 & 8 Vict. c. 111 was repealed by the 182nd section of the
last bankrupt act, 12 & 13 Vict. c. 106. But it is clear that this last‑mentioned
provision cannot, by merely re‑enacting a previous section of the 6 G.4,
c. 16, operate a repeal of the intermediate enactment.
And by the words of Willes J. in the same case, at p. 36:
As to the construction of
the 182nd section of the bankrupt act, there is a recent case before Vice‑Chancellor
Kindersley, of Wallace v. Blackwell, 3 Drewry, 538, where the
change of position of a clause, by its re‑enactment in a subsequent
statute, was considered not to vary its operation.
I am therefore of the view that the appellant must fail on this point.
Section 50 of The Public Schools Act of 1980 cannot be considered a
later enactment having the effect of creating an exception to the provisions of
s. 6(1) of The Human Rights Act.
8. In any event, I am in agreement with
Monnin C.J.M. where he said:
Human
rights legislation is public and fundamental law of general application. If
there is a conflict between this fundamental law and other specific
legislation, unless an exception is created, the human rights legislation must
govern.
This is in accordance with the views expressed by Lamer J. in Insurance
Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Human
rights legislation is of a special nature and declares public policy regarding
matters of general concern. Is is not constitutional in nature in the sense
that it may not be altered, amended, or repealed by the Legislature. It is,
however, of such nature that it may not be altered, amended, or repealed, nor
may exceptions be created to its provisions, save by clear legislative pronouncement.
To adopt and apply any theory of implied repeal by later statutory enactment to
legislation of this kind would be to rob it of its special nature and give
scant protection to the rights it proclaims. In this case it cannot be said
that s. 50 of the 1980 consolidation is a sufficiently express indication of a
legislative intent to create an exception to the provisions of s. 6(1) of The
Human Rights Act.
9. I would therefore dismiss the appeal
with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Fillmore & Riley,
Winnipeg.
Solicitors for the respondent: Skwark, Myers,
Baizley & Weinstein, Winnipeg.
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