McKinney v. University of Guelph (1990), 13 C.H.R.R. D/171 (S.C.C.) [Eng./Fr. 146 pp.] Supreme Court rules that mandatory retirement at age 65 is a reasonable limit on the s. 15 right to be protected from discrimination because of age ---- relationship between equality under human rights legislation and equality under the Charter

Keywords: EMPLOYMENT -- RETIREMENT -- mandatory retirement contravenes Charter -- education sector -- EDUCATION -- mandatory retirement for teachers and professors -- EXEMPTIONS -- age -- CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 1 (reasonable limits) to right to be protected from discrimination on basis of age -- s. 15 (1) (equality) -- s. 32 (application of Charter) -- application of three-part test -- EQUALITY -- relationship between equality under human rights legislation and equality under the Charter -- INTERPRETATION OF STATUTES -- definition of "age"

Summary: By a majority, the Supreme Court of Canada rules that mandatory retirement at age 65 is a reasonable limit on the s. 15 right to be protected from discrimination because of age. In five different judgments, the Supreme Court hands down a split 5-2 decision.

This is an appeal from a decision of the Ontario Court of Appeal which dismissed the applications of eight professors and a librarian at four Ontario universities for declarations that the policies of the universities requiring them to retire at age 65 violate s. 15, and that s. 9(a) of the Ontario Human Rights Code, by failing to protect those over age 65, also violates s. 15.

The issues before the Court are:

  1. whether the Canadian Charter of Rights and Freedoms applies to universities;
  2. if the Charter does apply to universities, whether mandatory retirement policies violate s. 15;
  3. whether the limitation of the prohibition against age discrimination in the Ontario Human Rights Code to persons between the ages of 18 and 65 violates s. 15; and
  4. if the limitation does violate s. 15, whether it is justifiable under s. 1 as a reasonable limit on an equality right.

La Forest J., writing for the majority, states that the Charter is essentially an instrument for checking the power of government over the individual. Private activity was deliberately excluded from the Charter's ambit. While it is true that the rights of individuals can be offended by private actors, governments can regulate in this sphere or create distinct bodies for the protection of human rights. Constitutional review of private action is not mandated by the Charter and it would diminish the area of freedom within which individuals can act.

Section 32 of the Charter states that the Charter applies to the legislature and government of each province. The majority finds that universities are not part of government within the meaning of s. 32. The Court rejects arguments that the Charter applies to universities because they are creatures of statute carrying out an important public service, or because their survival depends on government funding, or because their powers, objects, activities and governing structures are determined by government. Despite all of these controls, the majority finds, universities are legally autonomous; they control their own affairs and enjoy independence from government regarding all important internal matters. Their decisions are not government decisions.

Though the majority of the Court rules that the Charter does not apply to universities, they nonetheless consider the question of whether university mandatory retirement policies offend s. 15.

First, the majority decides that if the universities were part of the fabric of government, their policies on mandatory retirement would amount to "law" within the meaning of s. 15. All actions taken pursuant to powers granted by law, not merely legislative activities, will fall within the ambit of s. 15 of the Charter.

The majority then finds that the mandatory retirement policies of the universities violate s. 15. Mandatory retirement deprives a person of work, which is one of the most fundamental aspects of a person's life, based on the assumption that, because of age, the individual is less competent than younger persons.

However, the mandatory retirement policies would be saved by s. 1 because they are a reasonable limit on the equality rights guaranteed to older persons.

The universities' objectives for the mandatory retirement policies are pressing and substantial. These objectives are to enhance their capacity to seek and maintain excellence by permitting flexibility in resource allocation and faculty renewal, and to preserve academic freedom and the collegial form of association by minimizing intrusive modes of performance appraisal.

Mandatory retirement, the majority finds, supports the tenure system by obviating the need for elaborate evaluation schemes, and ensures continuing faculty renewal by making spaces available in a closed system for new and younger faculty members. Therefore, there is a rational connection between the university policies and the objectives sought to be achieved.

On the issue of whether the policies impair the rights of older workers as little as possible, the majority rules that the test to be applied is not whether the right is impaired as little as possible but whether the university had a reasonable basis for concluding that the policy impaired the right as little as possible. This is a relaxed s. 1 test, adopted in Irwin Toy Ltd. v. Quebec (Attorney General) to provide greater flexibility in assessing those cases where legislatures have had to make difficult choices between the claims of competing groups.

In this case, the majority concludes that there was a reasonable basis for concluding that the policy impaired the right as little as possible because mandatory retirement is not wholly detrimental to the group affected. The policy ensures that faculty members have a large measure of academic freedom and it is generally beneficial both to the universities and the individuals in them. Consequently, the minimal impairment of rights does not outweigh the universities' pressing and substantial objectives.

However, since the majority has ruled that the Charter does not apply to universities, the Court turns to the issue of whether the limitation of protection from age discrimination in s. 9(a) of the Ontario Human Rights Code to persons between 18 and 65, which allows mandatory retirement policies to exist for those 65 and over, is unconstitutional because it violates s. 15. Some of the faculty members who are the appellants in this case attempted to file complaints with the Ontario Human Rights Commission, but their complaints were refused because of the restricted jurisdiction of the Commission with respect to age discrimination.

The majority of the Court finds that policies of mandatory retirement were developed with the introduction of private and public pension plans. Mandatory retirement policies have had a profound impact on the organization of the workplace and on the structuring of pension plans, on fairness and security of tenure in the workplace, and on work opportunities for others. One of the objectives of s. 9(a) of the Ontario Human Rights Code was to arrive at a legislative compromise between protecting individuals from discrimination and giving employers and employees freedom to agree on a date of termination considered beneficial to both.

The objectives of government in passing s. 9(a) of the Code, the majority concludes, were pressing and substantial. Government objectives were to preserve the integrity of pension plans and to foster the prospects of younger workers. The majority of the Court finds that the legislature was faced with a complex socio-economic problem. In these circumstances, the majority considers that the limitation of protection in the Code is rationally connected to the objectives and that it minimally impairs the equality rights of older workers. Government had a reasonable basis for imposing what is a generally beneficial rule. The courts should adopt a stance that encourages legislative advances in the protection of human rights. But the courts should not lightly use the Charter to second-guess the judgment of a legislature as to just how quickly it should proceed in moving forward towards equality.

The appeal is dismissed.

In dissent, Wilson J. rejects the view, adopted by the majority of the Court, that the freedom guaranteed by the Charter is freedom for private individuals from government intervention. She finds that in Canada government has traditionally played a role in the creation and preservation of a just society. The state has been looked to and has responded to demands that Canadians be guaranteed adequate health care, access to education and a minimum level of financial security. Freedom has often required the intervention and protection of government against private action.

Wilson J. finds that where entities are not self-evidently part of the legislative, executive or administrative branch of government, some questions should be asked to determine whether the Charter applies. Does government control the entity in question? Does it perform a traditional government function or a function recognized as a responsibility of the state? Does it act pursuant to statutory powers given to it to further a government or public interest objective? Given the connections between governments and universities, and given that education at every level is a traditional function of government in Canada, Wilson J. concludes that universities form part of government for the purposes of s. 32 of the Charter.

Mandatory retirement is the law of the workplace at the universities, and, as such, Wilson J. finds that it is "law" within the meaning of s. 15. But s. 15 does not require that there be a discriminatory law, only that there be discrimination which must be redressed by the law.

Section 15 is infringed, Wilson J. concludes, because the mandatory retirement policies of the universities were based on the assumption that with age comes increasing incompetence.

Turning to s. 1, Wilson J. finds that the mandatory retirement policies are not saved by s. 1 because they do not impair the equality right as little as possible. There is no justification in this case to apply a relaxed s. 1 test. Where the legislature is forced to strike a balance between the claims of competing groups, and particularly where the legislature has sought to promote or protect the interests of vulnerable or less advantaged groups, the Court should approach the application of the minimal impairment test with a healthy measure of restraint. However, the universities seek to reap the benefit of this more flexible test fashioned in Irwin Toy on the basis that their mandatory retirement policy was intended to make available positions for younger academics. Young academics are not the kind of "vulnerable" group contemplated in Irwin Toy.

Wilson J. also finds that s. 9(a) of the Ontario Human Rights Code violates s. 15 because it strips persons over age 65 of all protection against employment discrimination. Once the government decides to provide protection it must do so in a non-discriminatory manner.

Section 9(a) should be struck down in its entirety, Wilson J. concludes. It cannot be saved by s. 1 since it cannot pass the minimal impairment test. The majority of individuals affected by s. 9(a) will suffer greater hardship because of the infringement of their rights. Therefore, the provision cannot be said to impair their rights as little as possible.

Wilson J. would declare that the university policies requiring mandatory retirement at age 65 violate s. 15 of the Charter and are of no force and effect. She would also order reinstatement in employment for the appellants with all the attendant benefits, and compensation for losses incurred because of the breach of rights. 'Heureux-Dubé J., dissenting, concludes that the Charter does not apply to universities. However, she finds that s. 9(a) of the Ontario Human Rights Code violates s. 15 and cannot be saved by s. 1.

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