Dickason v. University of Alberta [1992] 2 S.C.R. 1103: Mandatory retirement -- Provincial legislation prohibiting discrimination on basis of age -- Employer may show that alleged contravention "reasonable and justifiable in the circumstances" -- Whether university's policy of mandatory retirement at age 65 justified

 Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Civil rights -- Equality rights -- Mandatory retirement -- Provincial legislation prohibiting discrimination on basis of age -- Employer may show that alleged contravention "reasonable and justifiable in the circumstances" -- Whether university's policy of mandatory retirement at age 65 justified -- Whether criteria for limiting Charter rights under s. 1 apply -- Individual's Rights Protection Act, R.S.A. 1980, c. I-2, ss. 7, 11.1.

Courts -- Appellate review -- Findings of fact -- Curial deference -- Whether appellate court should disturb findings of fact made by board of inquiry and Court of Queen's Bench.

Appellant, a tenured full professor at the University of Alberta, was forced to retire at the age of 65 pursuant to a mandatory retirement clause in the collective agreement between the university and its academic staff. She filed a complaint with the Alberta Human Rights Commission alleging that her forced retirement contravened s. 7 of the Individual's Rights Protection Act by discriminating against her on the basis of her age. Section 11.1 of the Act provides that discrimination on a prohibited ground will be permitted if the employer shows that the breach was "reasonable and justifiable in the circumstances". The board of inquiry appointed to hear appellant's complaint decided in her favour and ordered that she be reinstated. The Court of Queen's Bench upheld that decision, but it was overturned by the Court of Appeal.

Held (L'Heureux-Dubé, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed. The university has shown that the impugned practice of mandatory retirement is reasonable and justifiable within the meaning of s. 11.1 of the Individual's Rights Protection Act.

Per La Forest, Gonthier, Cory and Iacobucci JJ.: In the construction of human rights legislation, the rights enunciated must be given their full recognition and effect, while defences to the exercise of those rights should be interpreted narrowly. In applying the test set out in Oakes for determining whether legislation can be justified under s. 1 of the Canadian Charter of Rights and Freedoms, the Court has adopted a flexible standard of proof which responds to the varying contexts in which the state seeks to invoke justification for the impugned legislation. Since a challenge brought under the Charter to legislation enacted by the state obviously affects a state interest, due deference must be given to the actions of the state manifested by the legislation under attack. The policy rationale for this varying standard cannot be automatically transferred to the consideration of human rights legislation, where the challenge will be to the actions of a private party. Charter cases may thus assist in the development of the test for determining whether a defence under s. 11.1 of the Individual's Rights Protection Act has been established, but the Oakes model is only appropriate if it is applied without any trace of deference to a private defendant, and only with a large measure of flexibility and due regard to the context.

The common law principle of curial deference to findings of fact made by a court of first instance has been to a large extent adopted in reviewing the decisions of administrative tribunals, although the standard of review will always be governed by the tribunal's empowering legislation. Curial deference must be given to a tribunal's findings of fact where there is a privative clause or where the findings were made within the tribunal's field of specialized knowledge. In this case, however, the Court should not be constrained by the conclusions of the board of inquiry. The Act has clearly indicated that a very broad standard of review would be appropriate. On a plain reading of the Act, it is clear that the legislature specifically intended that appellate courts should examine the evidence anew and, if deemed appropriate, make their own findings of fact. The judge of the Court of Queen's Bench did not hear any viva voce testimony, but rather reassessed the evidence on the basis of the transcript of the board hearing. The Court of Appeal and this Court thus stand in the exactly the same position as he did with precisely the same record to consider, and the policy reasons in favour of deferring to the findings of fact of a trial court do not apply.

While this Court's decision in McKinney can provide some guidance, it does not determine the outcome of this case. When weighing the arguments on the issue of minimal impairment as part of the analysis under s. 1 of the Charter, the majority in McKinney considered whether the government had a reasonable basis for concluding that it impaired the relevant right as little as possible. To frame the question in this way imposes a significantly lower burden of proof on the defendant than s. 11.1, which requires a defendant to prove that the discriminatory policy, viewed objectively, constitutes only a minimal impairment of the right. While no deference should be given to the policy choice of the defendant, other factors may well be relevant. The courts have respected the unique role of universities in our society as self-governing centres of learning, research and teaching safeguarded by academic freedom, and over the years have been very cautious in intervening in university affairs. The nurturing of academic freedom and the ensuring of faculty renewal are most delicate matters that do not lend themselves to a single clear-cut answer as to the proportionality between the burden of the discrimination complained of and the objectives sought. The evidence and assessment of competent and experienced university administrators will be of particular significance.

In this case the collective bargaining agreement authorizing compulsory retirement can also properly be taken into account. Parties may not generally contract out of a human rights statute. This rule resulted from the concern that there may be a great discrepancy in bargaining power between the person contracting out of human rights legislation and the party receiving the benefit of that term. Labour codes are specifically designed to overcome or compensate any imbalance in bargaining power, however, and with these statutory safeguards in place collective agreements take on a new and important significance. A collective agreement may very well provide evidence of the reasonableness of a practice which appears on its face to be discriminatory. It should be shown, however, that the agreement was freely negotiated by parties with relatively equal bargaining positions and that it did not discriminate unfairly against minorities. Here the term of the collective agreement relating to compulsory retirement will apply to every member of the faculty association. Moreover, the union did not negotiate the term in a vacuum, but rather in the context of a system of tenure which protects all members of faculty from dismissal without just cause, and provides a pension scheme assuring the financial security of all retiring members of faculty.
The objectives of mandatory retirement were stated to be the preservation of tenure, the promotion of academic renewal, the facilitation of planning and resource management and the protection of "retirement with dignity" for faculty members. Like the objectives put forward in McKinney, in which they are subsumed, they are of sufficient significance to justify the limitation of a constitutional right to equality. The impugned retirement practice is rationally connected to the objectives cited. The retirement of faculty members at the age of 65 ensures that the university may readily predict the rate at which employees will leave the institution and that positions are opened for new faculty. Mandatory retirement also allows the university to renew its faculty by introducing younger members who may bring new perspectives to their disciplines. It provides a means of remedying the twofold problem of limited funding and a "bulge" in the age distribution of professors. As well, the policy supports the existence of a tenure system which creates barriers to the dismissal of faculty members thereby enhancing academic independence. In the university setting, mandatory retirement also withstands the minimal impairment test. No obvious alternative policy exists which would achieve the same results without restricting the individual rights of faculty members. Finally, the effects of the prima facie discrimination are proportional to the legitimate objectives served.

Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Curial deference to the board of inquiry's findings of fact is consistent with both principle and precedent, and recognizes the "signal advantage" enjoyed by courts of first instance and administrative tribunals, which see and hear witnesses. A board's findings on social fact evidence should also be accorded some deference where these findings fall within the board's specific and primary mandate. A board whose determinations are not protected by a privative clause may be afforded less deference than a board which has the protection of such a clause, but this is only a question of degree.

In this case, it is clear that the trial judge appreciated the advantages enjoyed by the board, and that he relied on the board's findings of fact in making his own. This Court should accord the board's findings a similar measure of respect.

It has been established that human rights legislation is to receive a broad and purposive interpretation. Provisions which provide defences for discriminatory conduct must therefore be read narrowly. The analysis of s. 11.1 of the Act may be approached in a manner consistent with the model established in R. v. Oakes. The test for justifying discrimination under s. 11.1 is a strict one. This test requires the employer, in the face of a discriminatory practice, to prove the absence of a practical alternative to the discriminatory rule, satisfying a civil burden of proof. The flexible standard, whereby the defendant need not show that it adopted the least intrusive and offensive means of implementing policy, does not apply here. The rationale for the flexible standard is judicial deference to legislative choice, based on the idea that, with respect to resources and training, law makers are in a better position than courts to make policy choices between competing interests. This deference to legislative choice is completely unwarranted where, as here, the defendant is not a legislative body.

The university's policy of mandatory retirement at age 65 is not reasonable and justifiable under s. 11.1 of the Act. First, since parties generally may not contract out of human rights legislation, a collective agreement is not evidence of the reasonableness of a discriminatory practice. The prohibition against waiver of human rights provisions arises not only from a concern about inequality in bargaining power, but also because the rights guaranteed by human rights codes are seen as inherent to the dignity of every individual within our society. While the existence of a collective agreement whereby employees agree to limit their own rights may exceptionally be a factor in considering the justifiability of an employer's discriminatory policy, any such agreement must be scrutinized to ensure that it does not discriminate unfairly against a minority of the union membership, and that it was freely negotiated. The particular context of the bargain, including relevant legislation in place at the time of its conclusion, may greatly mitigate its evidentiary weight, as is the case here. In the circumstances, the collective agreement between appellant and the university is not evidence of the reasonableness of its mandatory retirement policy.

In light of this Court's conclusions in McKinney, the university's stated objectives are pressing and substantial. The university's fears about how tenure might be affected should mandatory retirement be eliminated are insufficient, however, to prove a rational connection between its objective of preserving the tenure system and its discriminatory policy. Peer evaluation is a fair and equitable way of assessing professors in good faith, on the basis of their teaching, research and publication records, rather than on their age. Unless abused, it poses no threat to academic freedom, and in fact enhances the value of tenure by ensuring that incompetent professors, young or old, are dismissed. The university has also failed to prove a rational link between the goal of faculty renewal and its policy of mandatory retirement. The argument that mandatory retirement at a fixed age allows the university to open positions to younger academics, thereby at once allowing a fresh infusion of ideas into the institution and remedying the problem of underfunding, does not stand up to scrutiny. It is based on the false premise that older workers are uniformly less productive and original than their younger colleagues. Further, the elimination of mandatory retirement would have only a limited effect on the number of jobs for young academics owing, in part, to the small number of academics who actually wish to keep working beyond the normal retirement age. The institutional planning argument, according to which mandatory retirement is necessary because it allows the administration to plan ahead, should also be dismissed. Other variables, such as resignations, deaths, and early retirement, are predicted with relative certainty by means of statistical forecasts. The slight inconvenience which inevitably remains cannot alone be used as a justification for the denial of equality on the basis of age. The retirement with dignity argument depends entirely on the idea that professors who reach the age of 65 must necessarily fear assessment on the basis of their performance, because that performance has necessarily declined rapidly with age. Given that the evidence conclusively refutes the myth of universal decline, and that peer evaluation is an effective tool for identifying incompetence, this proposition clearly fails at the outset. The policy of mandatory retirement does not in any event meet the minimal impairment test. Peer evaluations, based on objective assessment, offer a far more dignified approach to academic work and are thus infinitely preferable. Encouragement of early retirement is another non-discriminatory alternative that would achieve the university's goals. Finally, the devastating effects that forced retirement has on a worker's finances, health, and self-esteem are grossly disproportionate to any advantages the university gains by its discriminatory practice.

Per Sopinka J. (dissenting): The conclusion and for the most part the reasons of L'Heureux-Dubé J. were agreed with. In McKinney this Court decided that mandatory retirement at a specified age was not constitutionally impermissible. Parliament or a provincial legislature by appropriate legislation could prohibit or permit it. The province of Alberta, in s. 11.1 of its Individual's Rights Protection Act, has left the decision to employers and employees provided that where mandatory retirement is resorted to, the employer must satisfy a board of inquiry that this discriminatory practice is reasonable and justifiable.

The jurisprudence developed with respect to s. 1 of the Charter is a useful guide in applying s. 11.1. In determining whether the proportionality factor has been met, the Court should not defer to the decision of an employer in the same way as in the case of a governmental actor. The tests developed for the application of s. 1 of the Charter and the defence to discrimination under human rights legislation are similar. While the former as expounded in Oakes is more elaborate, they both require that the impugned measure bear a rational relationship to a legitimate objective. The test is whether the requirement is "reasonably necessary" to assure the performance of the job. This is a question of fact to be determined by a board of inquiry subject to appeal proceedings. All the circumstances must be taken into account, including any agreement or collective agreement between the employer and employees. This is a factor, but in this case it has little or no weight.

The appeal should be allowed because the board of inquiry found on the evidence that the connection between the university's objective and its mandatory retirement policy was weak. Moreover, the board found that there were other more reasonable means for the university to achieve its objectives. No valid reason for disturbing these findings has been made out.

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