Law Times

Law Times • November 26, 2012 CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. COURT OF APPEAL FEDERAL Constitutional Law Pilots forced to retire at age 60 due to mandatory retirement provisions in collective agree- ment. Both filed complaints with Canadian Human Rights Commission and commission referred complaints to tribu- nal. Airline and union relied on exception to prohibition against age-based discrimi- nation found at s. 15(1)(c) of Canadian Human Rights Act (CHRA). Pilots challenged constitutionality of provision. Tribunal dismissed constitu- tional challenge. Federal Court found that s. 15(1)(c) violated s. 15 of Canadian Charter of Rights and Freedoms and re- turned matter to tribunal for decision as to whether provi- sion could be justified under s. 1. Tribunal found that s. 15(1) (c) not saved by s. 1. On judicial review, Federal Court agreed but declined to grant declara- tion of invalidity on basis that, absent finding of error on part of tribunal, court' Mandatory retirement permissible at ages younger than 65 CHARTER OF RIGHTS jurisdiction limited. Supreme Court of Canada held in McK- inney v. University of Guelph (1990), 76 D.L.R. (4th) 545, 24 A.C.W.S. (3d) 479 (S.C.C.), that provision of Human Rights Code (Ont.), which permitted mandatory retirement begin- ning at age 65, breached con- stitutional protection against age-based discrimination but saved by s. 1. Tribunal and Fed- eral Court considered but did not apply McKinney. Union' s remedial appeal of finding that s. 15(1) (c) of CHRA not saved by s. 1 allowed and pilots' cross-appeal s from refusal to grant declara- tion of invalidity dismissed. Main question whether differ- ence in manner of determining age at which mandatory retire- ment becomes permissible was possible point of distinction. Impugned provisions in McK- inney denied protection of Code to workers over age of 65. Impugned provision in current case provided limited exception for individuals reaching normal age of retirement for employees working in similar positions. Under CHRA, mandatory re- tirement permissible at ages younger than 65. McKinney decision reflected sensitivity to permissive nature of Code and to choices made by labour market participants in relation to retirement, oſten through collective bargaining. Supreme Court noted legislature did not legislate within vacuum and deferred to choices of employ- ers and employees with respect to organization of workplace. McKinney did not decide that mandatory retirement provi- sions saved by s. 1 because 65 normal age of retirement. It did decide that mandatory retire- ment, as exception to prohibi- tion against age discrimination, could be justified when mutu- ally advantageous arrangement which permits workplace to be organized in manner that accommodates needs of both employers and employees. Nothing in McKinney to sug- gest analysis not applying to provisions permitting manda- tory retirement prior to age 65 nor does trigger by which age of mandatory retirement fixed change analysis. Same mecha- nisms at play in workplaces whether mandatory retire- ment occurs at 65 or younger. Tribunal and Federal Court bound by McKinney. Matter returned to tribunal with direc- tion that complaints dismissed These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. on ground s. 15(1)(c) of CHRA constitutionally valid. Vilven v. Air Canada (July 17, 2012, F.C.A., Pelletier, Layden- Stevenson and Gauthier JJ.A., File No. A-107-11) 218 A.C.W.S. (3d) 542 (33 pp.). FEDERAL COURT Employment Application for judicial review of decision of adjudicator ap- pointed under s. 242 of Canada Labour Code that respondent was unjustly dismissed from her employment because per- sonnel policy of employer pro- vided right to pre-termination hearing before chief and coun- cil. Band Manager conveyed admissions of respondent employee regarding theſt and attempted replacement of pre- scription medication of elder patient to chief and council for final decision regarding em- ployee' WRONGFUL DISMISSAL Adjudicator refused to consider reasons underlying termination Application allowed and mat- ter remitted back to different adjudicator for re-determina- tion. Adjudicator erred in ap- plication of proper legal test for unjust dismissal by refusing to hear evidence and make de- termination as to cause for ter- mination. Adjudicator failed to consider cause for termination and instead directed attention solely to procedures followed by employer in dismissing em- ployee. Adjudicator breached procedural fairness in failing to allow evidence to be submitted and submissions made regard- ing reasons for termination. Adjudicator refused to consider reasons underlying termination and confined hearing to proce- dural matters which prevented s employment status. all aspects of complaint from being fully assessed. Couchiching First Nation v. Can- ada (Attorney General) (June 18, 2012, F.C., Near J., File No. T-686-11) 218 A.C.W.S. (3d) 561 (14 pp.). Immigration Application for judicial review of denial of refugee claim. Ap- plicants were Roma citizens of Hungary who alleged fear of persecution due to their eth- nicity. Board denied claim on grounds applicants lacked cred- ibility. Applicants contended that they were denied fair hear- ing due to incompetence of their legal counsel at time of hearing. Applicants alleged that counsel' Applicants failed to prove how counsel's behavior prejudiced them REFUGEE STATUS alcohol on previous occasion and they had only met with her twice before hearing. At judicial review hearing counsel for applicants pointed to "poor representations" of their legal counsel in transcript of hear- ing before board. Applicants contended they were denied fair hearing however applicants fail to explain why hearing was conducted unfairly. Application dismissed. Incompetence of counsel has been recognized as breach of natural justice where there was evidence to support finding of incompetence. Here applicants failed to prove how their legal counsel' s breath smelled like at time of hearing prejudiced them. Counsel showed up for hearing, made representations, questioned applicants and ap- peared to have followed their instructions. Thus, counsel ap- peared to have exercised stan- dard of care required, bring- ing reasonable care, skill and knowledge to performance of her legal services. Absent any s behavior evidence of misconduct or prejudice, this court cannot conclude that applicants were denied fair hearing. Rather, counsel was chosen by appli- cants and they had sufficient time before hearing to find new lawyer if they had concerns. Since applicants had not proven that they were denied fair trial, court could not intervene. Balazs v. Canada (Minister of Citizenship and Immigration) (May 24, 2012, F.C., Pinard J., File No. IMM-6987-11) 218 A.C.W.S. (3d) 646 (10 pp.). Application for judicial review of denial of refugee claim. Ap- plicant was citizen of Mexico who alleged fear of persecu- tion by Mexican Government and authorities. Applicant leſt Mexico in 1993 and remained in United States, without mak- ing any attempts to regularize his status in that country, un- til he came to Canada in 2009. Panel of refugee protection division of Immigration and Refugee Board (the Member) determined that applicant was neither Convention Refugee, pursuant to s. 96 of Immigra- tion and Refugee Protection Act (Can.), nor person in need of protection, pursuant to s. 97 of Act. Member had concluded that applicant failed to estab- lish subjective fear and objec- tive basis to his claimed fear in Mexico and that he failed to rebut presumption of state pro- tection. During mid-hearing conference held aſter member had finished questioning ap- plicant and midway through counsel' Dispute between counsel and member did not result in member deciding unfairly applicant alleged that member was biased and brought motion asking member to recuse her- self. Member denied motion, noting that she had considered s questions, counsel for PAGE 17 Untitled-2 1 www.lawtimesnews.com 12-11-21 9:25 AM

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