Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Human rights - Right to equality - Discriminatory practices - Discrimination on the basis of age - Retirement - Mandatory retirement - Pension plans - Complainant forced to retire based on mandatory retirement policy imposed in compliance with terms of pension plan - Whether forcing complainant to retire is discriminatory - Whether the test developed in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, applied to the bona fide pension plan exemption found in s. 3(6)(a) of the New Brunswick Human Rights Act - Whether the majority of the Court of Appeal, in adopting that test, failed to give the Human Rights Act a broad, purposive and remedial interpretation consistent with its dominant purpose of achieving equality, failed to interpret an exemption narrowly, rejected the test developed in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, as applying to s. 3(6), or failed to find that the Zurich test must be interpreted in light of Meiorin - In the alternative, whether the majority of the Court of Appeal erred in finding that only the bona fide and not the “reasonable” part of the Zurich test applied - Whether s. 3(6) complies with the Canadian Charter of Rights and Freedoms.

When the complainant, who worked for the Potash Corporation of Saskatchewan (“PCS”), turned 65, he was required to retire pursuant to the mandatory requirement policy PCS had established in keeping with the terms of the PCS pension plan. PCS refused his request for an extension to continue working based on that policy. Neither the complainant’s work or performance are now in issue.

New Brunswick’s Human Rights Act prohibits age discrimination (s. 3(1)), but offers a defence if the discrimination is pursuant a bona fide occupational qualification (s. 3(5)). Section 3(1) does not apply to mandatory retirement under a bona fide pension plan (s. 3(6)(a)). The complainant filed a complaint alleging discrimination on the basis of age in respect of employment. As a preliminary matter, the Board of Inquiry was asked what criteria must be met to make a finding that a pension plan is a ‘bona fide’ pension plan such to satisfy the requirement of s. 3(6)? It found that the test set out in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3 (“Meiorin”), applied because both ss. 3(5) and (6) were qualified by the words “bona fide”. An application for judicial review was allowed. The Court of Appeal dismissed the appeal and the matter was remitted to the New Brunswick Labour and Employment Board.