French v. Nova Scotia (Attorney General), 2012 NSSC 394

SUPREME COURT OF NOVA SCOTIA Citation: French v. Nova Scotia (Attorney General), 2012 NSSC 394 Date: 20121126 Docket: Hfx. No. 334802 Registry: Halifax Between: Andrew French Applicant v. THE ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in Right of the Province of Nova Scotia and DALHOUSIE UNIVERSITY Respondents __________________________________________________________________ LIBRARY HEADING __________________________________________________________________ Judge: The Honourable Justice Pierre L.

Muise Heard: November 21, 2011 in Halifax, Nova Scotia Counsel: Andrew French represented by Brian Casey Attorney General represented by Edward A. Gores, Q.C. Dalhousie University represented by Rebecca Saturley

Summary: Dr. French was forced to retire at age 65. At the time, s. 6(

h) of the Human Rights Act, R.S.N.S. 1989, c. 214 (“HRA”), excepting anybona fide mandatory retirement plan (“MRP”) from the prohibition of discrimination in s. 5, was still in effect. Legislation repealing ithad been passed at the time. However, it did not come into force until approximately one year after Dr. French’s forced retirement. Dr.French filed a complaint with the Human Rights Commission. The Complaint alleged the MRP was not bona fide and his forcedretirement was prohibited discrimination. It did not allege that s. 6(

h) was unconstitutional and invalid. His complaint was dismissed.Following the dismissal, he filed an Application in Court for an order declaring s. 6(

h) contrary to s. 15 of the Charter andconstitutionally invalid. By then, the provision repealing s. 6(

h) had already come into force. Issues: 1. Is the application moot? 2. Should the Court exercise its discretion to determine the merits of the application even if it is moot? 3. If the application is not moot, or if the Court should exercise its discretion to determine the merits of the application, was s. 6(h)of the HRA unconstitutional when Dr. French was forced to retire? Result: 1. It would not be appropriate to grant a retroactive remedy, rendering the application moot, because s. 6(

h) of the Human Rights Acthad already been repealed. 2. Applying the rationale in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, this is not aproper case in which to exercise the Court’s discretion to determine a moot issue. 3. If the Court had found that it should determine the constitutional question, it would uphold the validity of s. 6(

h) because: theCourt is bound, by the Supreme Court of Canada decision in McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R.229, to determine s. 6(

h) is constitutional; and, it would be inappropriate, in the circumstances of this case, to interfere with theLegislature’s choice of date for the implementation of the legislation repealing s. 6(h). THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION QUOTES MUST BE FROM THE DECISION, NOT THE LIBRARY SHEET SUPREME COURT OF NOVA SCOTIA Citation: French v. Nova Scotia (Attorney General),

2012 NSSC 394 Date:

(20121126) Docket: Hfx. No. 334802 Registry: Halifax Between: Andrew French Applicant v. THE ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in Right of the Province of Nova Scotia and DALHOUSIE UNIVERSITY Respondents Judge: The Honourable Justice Pierre L. Muise Heard: November 21, 2011 in Halifax, Nova Scotia Counsel: Andrew French represented by Brian Casey Attorney General represented by Edward A. Gores, Q.C. Dalhousie University represented by Rebecca Saturley INTRODUCTION [ 1 ] The Applicant, Dr.

Andrew French, was a professor and researcher at the University of Alberta from 1970 to 1995. On January 1, 1995 he was appointed to a tenured professor position at Dalhousie University ( “ Dal ” ).

[ 2 ] He reached the age of 65 on February 20, 2008; and, was required to retire on July 1, 2008. [ 3 ] During that period of time, clause 24.04 of the collective agreement between Dalhousie and the Dalhousie Faculty Association ( “ Faculty Association ” ) provided that: "All Members shall retire at the end of the academic year in which they have reached the age of sixty-five years, as determined in accordance with the Dalhousie University Staff Pension Plan ( “ Pension Plan ” ) … . ” That clause also provided an exception for those Members who had been employees of the Technical University of Nova Scotia ( “ TUNS ” ) and met certain other criteria.

That exception did not apply to Dr. French. [ 4 ] The Pension Plan provided that, for employees hired on or after July 1, 19 64, the "Normal Retirement Date ” was the first day of July, immediately following the employee ’ s 65th birthday. [ 5 ] The combination of those provisions was interpreted as requiring Dr. French to retire on the 1 st of July following his 65th birthday. He attained age 65 on February 20, 2008. Therefore, his mandatory retirement date was July 1, 2008. [ 6 ] In April, 2008, Dr.

French contacted the Nova Scotia Human Rights Commission ( “ HRC ” ) regarding his concerns that his forced retirement was discriminatory. He was forced to retire on July 1, 2008. He then filed a complaint, dated Dec 8, 2008, with the HRC, alleging age discrimination contrary to s. 5 of the Human Rights Act , R.S.N.S. 1989, c. 214.

In that complaint, he alleged that: Dalhousie ’ s mandatory retirement policy was not a “ bona fide plan, scheme or practice of mandatory retirement ” pursuant to s. 6(h), nor a “ bona fide retirement or pension plan ” pursuant to s. 6(g); and, therefore, his forced retirement constituted discrimination on the basis of age, in violation of section 5(1)(d)(

h) of the Act . At the time, both of s. 6(

g) and s. 6(

h) were in effect and created exceptions to the prohibition against age discrimination in s. 5. [ 7 ] The HRC dismissed Dr. French ’ s complaint on the basis that there was “ no reasonable likelihood that an investigation [would] reveal evidence of a contravention of ” the Human Rights Act . Dr. French filed a Notice for Judicial Review of that dismissal on August 23, 2010. [ 8 ] Dr. French did not expressly raise the issue of the constitutionality of either of these 2 exceptions in the proceedings before the HRC. The first time he expressly raised that issue was when he filed the Notice for Judicial Review .

The Notice alleged grounds which included that:" The commission erred in law in failing to find that s. 6 (

g) and 6(

h) of the Human Rights Act are contrary to the Charter. ” [ 9 ] He again raised it when he filed the within application, on August 24, 2010, for an order declaring ss. 6 (

g) and 6 (

h) contrary to s. 15 of the Charter of Rights and Freedoms , and unconstitutional. [ 10 ] By order of Justice LeBlanc, issued Feb 28, 2011, it was directed that this application be heard, together with the judicial review, one after the other, by the same judge, with this application being heard first. Those hearings took place on November 22, 2011. [ 11 ] By the time French filed this application, the Nova Scotia Legislature had already proclaimed into force legislative changes affecting these exceptions. On April 12, 2007, the Nova Scotia Legislature passed legislation (Bill 163, An Act Respecting the Elimination of Mandatory Retirement , S.N.S. 2007, c. 11) which eliminated the s. 6 (

h) exception, and removed retirement plans as an exception under s. 6 (g). Initially, it had been proposed in Bill 63 that these changes were to come into force one year after Royal Assent (which was given April 13, 2007). By the Third Reading, the coming into force date was extended to on or after July 1, 2009. The changes were proclaimed in force on July 1, 2009. [ 12 ] In the brief filed and the oral submissions made on his behalf, Dr. French now requests, in relation to this constitutional proceeding, a declaration of unconstitutionality, and severance, only in relation to s. 6(

h) of the HRA . He indicated that

section 6(

g) was inapplicable.

[ 13 ] S. 6(

h) had already been removed from the HRA prior to the filing of this application. Dr. French is asking that the declaration be effective, at least for the purpose of assessing his complaint, retroactive to at, or prior to, the time of his forced retirement. [ 14 ] The Attorney General ( “ AG ” ) and Dal are of the view that: it would be improper to grant such retroactive relief in the case at hand; and, therefore, the Court should not determine the constitutional question due to its mootness at this point. They further argue that, if the application is not moot, Dr. French has not established that s. 6(

h) is constitutionally invalid. [ 15 ] Dr. French is of the view that this Court can properly grant a declaration that would result in the HRC assessing his complaint as though s. 6(

h) had been struck out prior to his mandatory retirement date; and, as such, the a pplication is not moot. ISSUES [ 16 ] This application requires this Court to determine the following broad issues: 1. Is the application moot? 2. Should the Court exercise its discretion to determine the merits of the application even if it is moot? 3. If the application is not moot, or if the Court should exercise its discretion to determine the merits of the application, was s. 6(

h) of the HRA unconstitutional when Dr. French was forced to retire on July 1, 2008? LAW AND ANALYSIS 1. IS THE APPLICATION MOOT? [ 17 ] In determining whether the application is moot the Court must assess: (

A) When the constitutional question was first engaged; (

B) Whether, if s. 6 (

h) of the Human Rights Act is unconstitutional, a declaration of invalidity would be prospective only; and, (

C) If a declaration of invalidity would be prospective only, whether there is still an appropriate remedy available justifying determining the merits of the constitutional question. A . When Was the Constitutional Question First Engaged? Was it raised by the content of the complaint documents or the arguments made in support of the complaint?

[ 18 ] Dr. French pointed out that Karin McLay, Human Rights Officer with the HRC, told him, in e-mail correspondence on December 8, 2008, that: “ only factual allegations should be included in a complaint form ” ; and, they “ generally don ’ t make a statement regarding how a statutory requirement is legally interpreted ” . He argued that, in light of that direction, the content of his complaint is sufficient to raise the question of the constitutionality of s. 6 (h). The content he refers to includes the following:

i) The intake form he filled out indicated he was asking to be allowed to retire when he chooses to, which is the same remedy he is seeking now; and, ii) His Complaint dated December 8, 2008 alleges discrimination in employment based on age. [ 19 ] The paragraph of the Complaint alleging age discrimination states: “ Based on all of the above , I allege that I was discriminated against in my employment at Dalhousie on the basis of my age, that Dalhousie's policy of mandatory retirement is not a ‘ bona fide plan, scheme or practice of mandatory retirement ’ pursuant to

section 6 (h) , or a ‘ bona fide retirement or pension plan ’ pursuant to

section 6 (g), and that this is a violation of section 5(1) (d)(

h) of the Nova Scotia Human Rights Act . ” [ 20 ] The allegations “ above ” include allegations of inconsistent application of the mandatory retirement policy. [ 21 ] In my view, Dr. French's Complaint alleged discrimination under the HRA because: Dal's mandatory retirement policy did not fit within the exceptions to the prohibition against age discrimination contained in sections 6(

g) and 6(h); and, Dal did not apply the mandatory retirement policy consistently. It did not challenge the constitutional validity of those sections. [ 22 ] The content of Dr. French's December 8, 2008 Complaint is essentially the same as that of his e-mail to Ms. McLay of December 7, 2008. Therefore, Ms. McLay's comment that "only factual allegations should be included" did not impact the content his Complaint. [ 23 ] Dr. French later filed, with the HRC, a rebuttal, dated February 1, 2009, to Dal ’ s response to his complaint.

Then, after receiving a letter from Sean Hardy, indicating that he would be recommending dismissal of his complaint, Dr. French, wrote a letter dated April 5, 2010, to Krista Daley, Director and CEO of the HRC. Both the rebuttal and the letter to Ms. Daley are at Tab 3 of the Record. They referred to decisions of various courts and administrative tribunals, and advanced arguments regarding the

interpretation of the mandatory retirement provisions of the HRA based on those decisions. They also argued that, even if Dal ’ s mandatory retirement scheme was bona fide , its inconsistent application made it such that the operation of the policy was not bona fide . Dr. French, in that correspondence, showed he felt free to advance legal arguments. Yet, he advanced no argument suggesting that the mandatory retirement exceptions to age discrimination under the HRA should be ignored due to being unconstitutional.

Rather, his argument was that Dal ’ s retirement plan and/or its implementation did not fit within those exceptions. [ 24 ] University of Regina v Kly , 2011 SKQB 93 , dealt with an application for judicial review of a decision of the Sakatchewan Human Rights Tribunal to refer, to a full inquiry, two age discrimination complaints arising from mandatory retirement. At paragraph 11, in relation to one of the complaints, the court stated: “His complaint alleged a violation of the Code. Because at the time the Code did not prohibit mandatory retirement, Mr.

Seymour’s Complaint was regarded and treated as raising or implicating the provisions of s. 15(1) of the … Charter … prohibiting discrimination on the basis of age ” [ 25 ] Dr. French suggests that his complaint should be treated in the same fashion. However, the case at hand is distinguishable from

[25] Dr. French suggests that his complaint should be treated in the same fashion. However, the case at hand is distinguishable fromKly. In Kly it was not a situation where the Code violation complaint was particularized to allege that the circumstances were such thatthe exceptions to the prohibition against age discrimination were inapplicable. The issue in Kly was whether the definition of age in theCode, which had an upper limit of 65, was unconstitutional. In those circumstances, there could only be a violation of the Code if theupper limit of 65 was constitutionally invalid.

Therefore, unless the complaint was treated as raising a question regarding theconstitutional validity of that definition, there would be no real issue raised. Dr. French’s complaint clearly alleged that the exemptingprovisions were inapplicable. As such there would have been no reason for the HRC to treat his complaint as raising a question as to theconstitutionality of the exempting provisions.

In the face of the Supreme Court of Canada’s decision in McKinney v University ofGuelph, (SCC), [1990] 3 S.C.R. 229, upholding the constitutionality of mandatory retirement in the university context,and absent any issue being raised as to the constitutionality of s. 6(h), the HRC could not reasonably treat the complaint as raising thatconstitutional question.

Consequently, in my view, it is not appropriate for this Court to treat his complaint, after-the-fact, as havingraised the issue of the constitutionality of s. 6(h). [26] The parties agreed that the HRC could refer, to a BOI, a challenge to the constitutionality of its enabling statute. Ifthat is so, such a constitutional question is properly to be raised before the HRC. The Applicant went even further.

He argued that theHRC would be obligated to refer such a matter because it would not have authority to determine the constitutional question itself. [27] Justice LaForest, for the majority, in Bell v Canada (Human Rights Commission); Cooper v Canada (Human RightsCommission), (SCC), [1996] 3 S.C.R. 854, at paragraphs 44, 53 and 54, stated: “44 There was considerable argument by the parties to the effect that this sort of screening function by the Commission with respect tothe constitutionality of a provision of its enabling statute would not amount to an actual determination of the constitutional question, thatit would be no more than an opinion.

This is quite simply not the case. If the Commission had found that there was some uncertaintyregarding the constitutionality of s. 15(

c) of the Act, and as a result sent the matter to a tribunal, the Commission would have effectivelyfound s. 15(

c) to be inoperative. For, if s. 15(

c) is valid, it operates to deny the Commission jurisdiction to refer the appellants' complaintto a tribunal; it is trite law that the Commission has no other jurisdiction than that granted to it by Parliament. There is no middle ground:either s. 15(

c) is operative and the Commission has no jurisdiction, there being no discriminatory practice; or the

section is inoperativeand the Commission does have jurisdiction. Therefore the question before this Court is a straightforward one: does the Commission, andin turn a tribunal appointed under the Act, have the power to find a provision of the Act unconstitutional and treat it as inoperative? .... 53 The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether acomplaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of ajudge at a preliminary inquiry.

It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decideif, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission'srole, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employésde production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), (SCC), [1989] 2 S.C.R. 879,at p. 899: The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(

b) that this occur where there isinsufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence isweighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence forproceeding to the next stage. 54 The striking down of s. 15(

c) by the Commission, which is what a referral to a tribunal in the present case would amount to, wouldbe an assumption by the Commission of an adjudicative role for which it has no mandate.

When Parliament has failed to vest anadministrative body with such a jurisdiction (which is the case here), then it is not the role of a court to create such jurisdiction.Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be respected.” (Emphasisby underlining added) [28] If this is still good law, it indicates that, the HRC, when faced with a challenge to the constitutionality of a provision of theHRA, in a case before it, would not have jurisdiction to refer the matter to the BOI. [29] Justice LaForest went on to find that a Tribunal appointed by the Commission did not have jurisdiction to “question theconstitutional validity of a limiting provision of” its enabling statute.

At paragraphs 63 to 66, with case references in parentheses omitted,he stated:

“63 Given my finding that the Commission does not have the jurisdiction to question the constitutional validity of its enabling statute,it logically follows that a tribunal appointed under the Act, and indeed a review tribunal appointed pursuant to s. 56, must also lack thejurisdiction to declare unconstitutional a limiting provision of the Act. Take for example the case presently before us: if the Commissionmust apply the Act as it is written, then the appellants cannot get their complaint before a tribunal, depending as it does on s. 15(

c) beingfound to be inoperative. The same is true of any complaint that requires the Commission to arrive at a decision on a constitutional matterbefore being able to find that the complaint warrants further inquiry by a tribunal. It would be something of a paradox for Parliament togrant tribunals under the Act a jurisdiction that could never be exercised. 64 As with the Commission there is no explicit power given to a tribunal to consider questions of law.

Taken together, ss. 50(1) and53(2) of the Act state that a tribunal shall inquire into the complaint referred to it by the Commission to determine if it is substantiated.This is primarily and essentially a fact-finding inquiry with the aim of establishing whether or not a discriminatory practice occurred. Inthe course of such an inquiry a tribunal may indeed consider questions of law. As with the Commission, these questions will often centrearound the

interpretation of the enabling legislation. However, unlike the Commission, it is implicit in the scheme of the Act that atribunal possess a more general power to deal with questions of law. Thus tribunals have been recognized as having jurisdiction tointerpret statutes other than the Act and as having jurisdiction to consider constitutional questions other than those noted above.

Inparticular, it is well accepted that a tribunal has the power to address questions on the constitutional division of powers, on the validity ofa ground of discrimination under the Act, and it is foreseeable that a tribunal could entertain Charter arguments on the constitutionalityof available remedies in a particular case. Even in such instances, however, the legal findings of a tribunal receive no deference from thecourts.

This position was firmly established by this Court in Mossop, supra, at p. 585: The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend togeneral questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, andinvolve concepts of statutory

interpretation and general legal reasoning which the courts must be supposed competent to perform. 65 I would add a practical note of caution with respect to a tribunal's jurisdiction to consider Charter arguments. First, as already noted,a tribunal does not have any special expertise except in the area of factual determinations in the human rights context. Second, anyefficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding isbrought in the Federal Court.

Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rightscomplaint determination but is inappropriate when addressing the constitutionality of a legislative provision.

Finally, and perhaps mostdecisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erodeto a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints. 66 Taking all these factors into consideration, I am of the view that while a tribunal may have jurisdiction to consider general legaland constitutional questions, logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act.” [30] However, the Supreme Court of Canada, in Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, atparagraph 3, unanimously stated: “3 In my view, the Nova Scotia Court of Appeal erred in concluding that the Appeals Tribunal did not have jurisdiction to consider theconstitutionality of the challenged provisions of the Act and the FRP Regulations.

I am of the view that the rules concerning thejurisdiction of administrative tribunals to apply the Charter established by this Court in Douglas/Kwantlen Faculty Assn. v. DouglasCollege, (SCC), [1990] 3 S.C.R. 570, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC),[1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2S.C.R. 22, ought to be reappraised and restated as a clear set of guidelines.

Administrative tribunals which have jurisdiction -- whetherexplicit or implied -- to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction todecide the constitutional validity of that provision. This presumption may only be rebutted by showing that the legislature clearlyintended to exclude Charter issues from the tribunal's authority over questions of law. To the extent that the majority reasons in Cooperv.

Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, are inconsistent with this approach, I am of theview that they should no longer be relied upon.” [31] A significant difference between the majority reasons in Cooper and the reasons in Martin appears to be that, once anadministrative body was found to have express or implied jurisdiction to decide questions of law, Cooper still required an additional

finding that parliament intended the body to also have jurisdiction to determine the constitutional validity of the legislative provision it was interpreting, while Martin automatically found an accompanying jurisdiction to determine such constitutional validity absent a clear intention to remove that jurisdiction. [ 32 ] This difference is highlighted at paragraphs 35 and 36 of Martin , where the Court stated: “ 35 In each case, the first question to be addressed is whether the administrative tribunal at issue has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision.

While, as stated in the trilogy and Cooper , supra , this question is one of legislative intent, it is crucial that the relevant intent be clearly defined. The question is not whether Parliament or the legislature intended the tribunal to apply the Charter .

As has often been pointed out, such an attribution of intent would be artificial, given that many of the relevant enabling provisions pre-date the Charter : … That attribution of intent would also be incompatible with the principle stated above that the question of constitutional validity inheres in every legislative enactment by virtue of s. 52(1) of the Constitution Act, 1982 .

Therefore, in my view, to the extent that passages in the trilogy and Cooper , supra , suggest that the relevant legislative intention to be sought is one that the tribunal apply the Charter itself, those passages should be disregarded. 36 Rather, one must ask whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, then the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of the Charter , unless the legislator has removed that power from the tribunal.

Thus, an administrative tribunal that has the power to decide questions of law arising under a particular legislative provision will be presumed to have the power to determine the constitutional validity of that provision.

In other words, the power to decide a question of law is the power to decide by applying only valid laws.” [ 33 ] Some cases decided after Cooper , and before Martin , distinguished Cooper on the basis that it dealt with the issue of whether the administrative body in question could determine the constitutionality of a provision in its enabling statute, instead of the constitutionality of a provision in other legislation, or of a party ’ s actions. [See Québec (Procureure générale) c.

Québec (Commission des droits de la personne et des droits de la jeunesse) , [2000] J.Q. no 1681 (C.s.) , paragraph 50 ; and, Saskatoon School Division No. 13 of Saskatchewan v. Saskatchewan Human Rights Commission , [1998] S.J. No. 343 (Q.B.) , para 10 .] However, both Cooper and Martin dealt with legislative provisions in the enabling statute of the administrative body in question. Therefore, that distinction is no longer applicable. [ 34 ] The Canadian Human Rights Act was amended, post- Cooper , to clarify, in s. 50(2), that the Tribunal has jurisdiction to deal with “ general questions of law ” .

There does not appear to be any clear intention to remove, from the Tribunal, the jurisdiction to determine the constitutional validity of the provisions it must interpret. Following the approach in Martin , the Tribunal would, therefore, now be found to have jurisdiction to determine the type of constitutional question Cooper found it had no jurisdiction to determine. [ 35 ] Consequently, the comment in Cooper , that “ [i]t would be something of a paradox for Parliament to grant tribunals under the Act a jurisdiction that could never be exercised ” , should be read in a different light. It still rings true.

However, since the tribunal has jurisdiction to determine such constitutional questions, it “ would be something of a paradox ” if they could not exercise it because the Commission could not refer such a question. In my view it makes sense that the (Canadian) Commission, and the HRC, have jurisdiction to refer a constitutional question to the Tribunal/BOI.

Otherwise, the Tribunal/BOI would not have the opportunity to consider constitutional questions, unless they arose as part of a matter referred for the purpose of determining non-constitutional questions. [ 36 ] In addition, in my view, the Supreme Court of Canada has now overruled the finding in Cooper that a Commission referral to a tribunal is adjudicative in nature. In Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 , affirming 2010 NSCA 8 , the HRC had chosen to refer the alleged violation of the HRA to the BOI.

The Supreme Court of Canada concluded that the HRC ’ s decision met the applicable standard of reasonableness. In arriving at that conclusion, the Court reaffirmed that “ the Commission ’ s function is one of screening and administration, not of adjudication ” . [Paragraph 23] The Court emphasized, at paragraph 21, that “ the Commission has a broad discretion as to whether or not to ” appoint a BOI, which discretion is to be exercised, “ having regard to all the circumstances of the complaint ” .

In my view, that suggests that a decision not to refer a legal question, including a constitutional question, is not to be considered an adjudication of the question. The HRC may base its decision on factors and considerations beyond the merits of the legal question or constitutional challenge.

[ 37 ] Therefore, in my view, in light of Halifax v. NS (HRC) , the comment in Cooper that a referral to a tribunal would amount to “ striking down of s. 15(

c) by the Commission ” is no longer applicable. [ 38 ] In the case at hand, a BOI appointed by the HRC, has express authority to decide questions of law. There is no indication of any legislative intent to remove the BOI ’ s jurisdiction to decide Charter issues. Thus the BOI can determine that a provision of HRA is of no force and effect and treat it as such. In my view, the appointing of a BOI, in the case at hand, to inquire into the complaint, on the basis that it should inquire into the constitutional validity of the retirement plan exception, would not, in my view, be assuming an adjudicative role.

It would simply be determining that further inquiry is warranted. [ 39 ] As such, I agree with Counsel for all parties, that the HRC could have referred, to a BOI, the question of the constitutionality of the retirement plan exception. However, as indicated, in my view, the question was not raised before the HRC by Dr. French. [ 40 ] I, nevertheless, respectively disagree with Dr. French ’ s submission that, faced with a challenge to the constitutionality of applicable legislation, the HRC would be obligated to refer the challenge to the BOI.

Such a result would, in my view, be contrary to the holding in Halifax v. NS (HRC) regarding the screening function of the HRC. In addition, it would dramatically curtail that screening function, as all a party would have to do to get past the HRC, to the BOI, would be to raise such a challenge. It is also noteworthy that, in Halifax v. NS (HRC) itself, the complainant had alleged a Charter violation which the HRC did not refer to a BOI [see paragraph 55], and the Supreme Court of Canada made no comment regarding such a referral having been mandatory. [ 41 ] In

summary, I am of the view that the question of the constitutionality of s. 6(

h) could properly have been raised before the HRC, and the HRC could have referred that question to a BOI. However, the question was not raised before the HRC. B. If s. 6(

h) of the Human Rights Act is Unconstitutional, Would a Declaration of Invalidity be Prospective Only? [ 42 ] In this constitutional proceeding, Dr. French is asking for a declaration that s. 6(

h) is unconstitutional and, as a result, of “ no force or effect ” . He is challenging a law, not a government act violating Charter rights.

Consequently, as noted in R v Ferguson , 2008 SCC 6 , at paras 59 to 61 , the remedy being sought is one pursuant to s. 52(1) of the Constitution Act, 1982. [ 43 ] The Supreme Court of Canada, in Canada (Attorney General) v Hislop , 2007 SCC 10 , at paragraph 99 , stated that, for a constitutional remedy to be limited to having prospective effect only, “ a substantial change in the law is necessary ” . [ 44 ] Until July 1, 2009, the HRA expressly permitted discrimination based on age as part of a “ bona fide plan, scheme or practice of mandatory retirement ” . Declaring s. 6(

h) invalid, removes that exception to age-based discrimination being in contravention of the Act , making it no longer permissible. [ 45 ] The Supreme Court of Canada, in McKinney , concluded that the university ’ s mandatory retirement policy infringed s. 15 of the Charter , however, it was saved under s. 1 , as being a reasonable limit to the equality rights in s. 15. Thus it found that: the policy was constitutional; and, and age-based discrimination, for that purpose, was permissible. The Supreme Court of Canada did not subsequently pronounce that such a mandatory retirement policy would be unconstitutional. I am not aware of any other case in which the constitutionality of s. 6(

h) has been challenged, nor of any case in which McKinney has been overturned. When s. 6(

h) was repealed, McKinney was binding in Nova Scotia. [ 46 ] On July 1, 2009, there was, in my view, a substantial change in the law in Nova Scotia relating to mandatory retirement plans. They can no longer be implemented in a way which discriminates based on age. [ 47 ] In the same way, a declaration now that s. 6(

h) was invalid would constitute a substantial change to the law relating to mandatory retirement plans that existed in Nova Scotia, prior to July 1, 2009.

[ 48 ] Once the threshold requirement of a substantial change in the law has been met, the Court may go on to consider and balance the factors relevant to determining whether the constitutional remedy should be prospective only. Hislop , at paragraphs 100 to 117 , outlined and discussed the following non-exclusive list of factors to be considered:

i) Was it reasonable for the government to rely upon the unconstitutional provision? ii) Was the government relying upon the unconstitutional provision in good faith? iii) Is it fair to the litigants to limit the retroactivity of the remedy? iv) Would a retroactive remedy “ unduly interfere with the constitutional role of legislatures and democratic governments in the allocation of public resources ” ? Was it reasonable for the government to rely upon the unconstitutional provision? [ 49 ] In my view it was reasonable for the government to rely upon McKinney and to treat the impugned provision as constitutional.

The Board of Governors of Dalhousie University and the Dalhousie Faculty Association also, more likely than not, relied upon the retirement plan exception provisions being constitutional in reaching their 2007 to 2011 Collective Agreement. I say that because Clause 24.04 required retirement at age 65. Had the parties been of the view that was unenforceable as being contrary to the HRA , in my view it would not have been included as a term of the agreement.

For the same reason, in my view, it was also reasonable for them to rely upon the provision being constitutional [ 50 ] The Court in Hislop , at paragraph 114 , stated that, where the government relies upon an unconstitutional law because it is relying upon the Supreme Court of Canada ’ s jurisprudence, “ it will be less likely that a right to retroactive relief will flow from a subsequent declaration of invalidity of the unconstitutional law ” .

Was the government relying upon the unconstitutional provision in good faith? [ 51 ] The government delayed the coming-into-force of the legislation removing the provisions making bona fide retirement plans a permissible exception to age discrimination. The comments of the Honourable Maureen MacDonald, recorded in Nova Scotia Legislative Assembly, Debates and Proceedings , 60 th Assembly. 1 st Sess, Hansard 07-47 (April 3, 2007) at p. 4200 suggest the delay was to “ give some lead time to the employers in the province to prepare their workplaces for any possible impact ” .

The comments of the Honourable Mark Parent, recorded in Nova Scotia Legislative Assembly, Debates and Proceedings , 60 th Assembly. 1 st Sess, Hansard 07-52 (April 12, 2007) at p. 4761, indicate the delay was extended to accommodate collective agreements that were already in place.

The delay was implemented in the face of a pronouncement from the Supreme Court of Canada, in McKinney , that a mandatory retirement policy based on age, though a violation of Charter s. 15, was saved under s. 1 . [ 52 ] A period of slightly less than 2 years and 3 months is not a lengthy period in which to prepare and adjust for the possible impact of eliminating a mandatory retirement age. Hiring and succession plans have to be re-adjusted. It affects the workplace ’ s budgetary requirements. It makes the mandatory retirement provisions of existing collective agreements unenforceable.

It adds a new element to negotiation of new collective agreements. [ 53 ] In my view, the reliance on the constitutionality of the provisions and the delay in removing them was done in good faith.

[ 54 ] In Hislop , at paragraph 115 , the Court stated: “Because the government acted in good faith by attempting pre-emptively to correct a constitutional infirmity soon after it was discovered, it would be inappropriate to reach back further in time and impose a retroactive remedy.” [ 55 ] In my view, where, as in the case at hand, the government has acted pre-emptively to remove exceptions to discriminatory conduct that would otherwise be statutorily recognized as being prohibited, prior to having reason to conclude the exceptions are unconstitutional, there is even more reason to respect the government ’ s choice of timing and refuse to impose a retroactive remedy.

Is it fair to the litigants to limit the retroactivity of the remedy? [ 56 ] This application is purely one dealing with the question of the constitutionality of the impugned provision. However, the practical effect of the remedy sought in this application is that it would require the HRC to reconsider Dr. French ’ s complaint on the basis that the HRA did not include the exceptions permitting bona fide retirement plans at the time Dr. French was forced to retire. A prospective remedy would be of no practical benefit to Dr. French in that complaint process. [ 57 ] However, Dr.

French has already, since 1995, reaped significant benefits from the mandatory retirement policy that was in place. Part of the benefits are based on the fact that, as noted at paragraph 62 of McKinney , mandatory retirement helps “ maximize academic freedom by minimizing interference and evaluation ” . Dr. French was able to enjoy such academic freedom, in part, because of the mandatory retirement plan in place. In addition, he benefitted from that plan when he was hired in that it created more openings to hire new professors, thus increasing his opportunities for hire.

Further, mandatory retirement was but one part of the collective agreement in place. Dr. French benefitted from other aspects of that collective agreement. [ 58 ] Dr. French had from December 8, 2008, when he filed his complaint, to June 30, 2009, to amend his complaint in advance of the impugned provision being removed, and until July 19, 2010, to amend it in advance of the decision of the Director of the HRC dismissing his complaint. The legislation eliminating s. 6(

h) was passed April 12, 2007. It led to discussions between the Dalhousie Faculty Association and Dal. Given his impending retirement date, Dr. French received e-mails, from the Dalhousie Faculty Association, informing him that legislation was being passed eliminating mandatory retirement. They are attached as Exhibits 3 and 4 to his affidavit. Yet he did not amend his complaint, nor submit further argument raising the constitutionality of s. 6(h), even after receiving Sean Hardy ’ s letter of March 24, 2012, recommending dismissal of the complaint.

He did not suggest, in his complaint, that he should not be denied the benefit of the legislative changes. He did not even mention the legislative changes. In my view, he failed to take advantage of the opportunity he had to raise the constitutional issue, in any way, at the time, and in the forum, where a retroactive remedy may have been more appropriate. [ 59 ] Further, there was nothing preventing him from bringing a Charter application before this Court at any time before the repeal of s. 6(h).

However, he did not do so. [ 60 ] A retroactive remedy would be unfair to Dalhousie, as it would deny it the benefit of the legislated delayed start time to allow it, and other employers, to prepare for the effects of the change. Such prejudice would not be limited to the consequences arising directly from Dr. French ’ s case. Given that Dr.

French ’ s application is made after and outside the HRC process, to allow a retroactive remedy in the case at hand, would risk making the same remedy available to all persons having been forced to retire before the legislative change, irrespective of whether they filed a complaint or not. [ 61 ] According to the affidavit of Katherine Sheehan, in the 2007/2008 and 2008/2009 academic years, the years in the period between the passing and the coming-into-force of the legislation repealing s. 6(h), a total of 55 faculty members retired because they reached age 65, while a total of 317 faculty members were hired, typically at a lower salary.

A portion of the additional faculty may have been due to increased student enrollment; but, it would be a small portion. According to Ms. Sheehan ’ s affidavit, student enrollment only rose from 15,367 on December 1, 2008, to 15,999 on December 1, 2009. That is 632 extra students. It may include part-time students. From December 1, 2009 to December 1, 2010 the increase was by 694 students, roughly the same number. Ms. Sheehan did not

present the student increase from December 1, 2007 to December 1, 2008, to make a direct comparison. However, if the student increase was similar in that year, it would not, in my view, account for the increase in faculty from the 2007/2008 year to the 2008/2009 year, which was by 138 faculty members. Such an increase would presuppose a student-faculty ratio of about 5 to 1, which would appear to be unreasonably low. [ 62 ] The cost to Dal of compensating those other 54 retirees would be significant. Dal depended on the delayed coming- into-force date to make hiring decisions.

Dal was only made aware of this application in August of 2010. By then it was already difficult to undo its prior hiring decisions, particularly in relation to the 102 tenure stream faculty members hired. It has now already expended significant financial resources on the new faculty. Compensation or reinstatement necessitated by a retroactive remedy would undermine Dal ’ s ability to retain the new faculty members already hired and to hire additional new faculty.

That would significantly hamper its objective of “ faculty renewal ” which was recognized in McKinney as being “ crucial to extending frontiers of knowledge ” . Therefore, in addition to Dal suffering, so would potential new faculty, Dal ’ s students and the public at large.

Furthermore, the same prejudice would extend to other universities in Nova Scotia. [ 63 ] The unfairness to Dal is further exacerbated by the fact that mandatory retirement was part of 2007 to 2011 collective agreement between it and the Faculty Association, and had been part of the collective agreements between the parties since 1979. [See Ms. Sheehan ’ s affidavit, paragraphs 13 to 21.] Therefore, a retroactive declaration would cause Dal to lose a greater part of the benefit of the mandatory retirement provisions of the collective agreement, than if the July 1, 2009 coming-into-force date was respected.

In addition, in making plans for its operation, Dal had been, for a very long time , relying on mandatory retirement being in place. The abolishment of mandatory retirement marked a significant shift for Dal. A retroactive declaration would cause additional disruption to Dal ’ s operational plans. Would a retroactive remedy “ unduly interfere with the constitutional role of legislatures and democratic governments in the allocation of public resources ” ? [ 64 ] Unlike Hislop , the case at hand does not deal with legislation providing for government benefits.

However, a retroactive remedy in the case at hand would at least indirectly affect the government ’ s allocation of public resources. The government provides funding to Dalhousie University. Retroactive prohibition of mandatory retirement would open the door to forced rehiring or compensation of Dr. French and other professors forced to retire. They tend to be at or towards the top of the salary scale. Replacements have been hired. Thus a retroactive remedy would increase Dalhousie ’ s expenses and its need for government funding.

Clause 11 of the Memorandum of Understanding between the Province of Nova Scotia and Nova Scotia Universities may require the Government to adjust funding to respond these increased expenses. [Exhibit “ K ” to affidavit of Ms. Sheehan.] The same result would, more likely than not, obtain in other workplaces who rely on government funding. However, the issue of allocation of its resources does not appear to have been the main impetus for delaying the coming into force of the changes. [ 65 ] The main reason was to allow time for employers to prepare and adjust for the elimination of mandatory retirement.

That would include a consideration of allocation of resources by employers. Deference must be given to the legislature in deciding to delay the coming into force of the changes for that purpose. [ 66 ] I am not aware of any jurisprudence in which there has been a retroactive declaration on the issue of the constitutionality of mandatory retirement. Conclusion Regarding Whether Declaration of Invalidity Should Have Prospective Effect Only [ 67 ] Considering all of these factors, I am of the view that a retroactive remedy would not be appropriate in the circumstances of the case at hand. C .

If a Declaration of Invalidity Would be Prospective Only, Is There Still an Appropriate Remedy Available Justifying Determining the Merits of the Constitutional Question? [ 68 ] In Nova Scotia (Workers ’ Compensation Board) v Martin; Nova Scotia (Workers ’ Compensation Board) v

Laseur, 2003 SCC 54, Mr. Martin and Ms. Laseur were refused workers’ compensation benefits by the Workers’ Compensation Board.They appealed the refusals to “the Appeals Tribunal on the ground that portions of s. 10B of the Act, which prevented chronic painsufferers from obtaining workers’ compensation benefits, infringed s. 15 of the Charter”. The Appeals Tribunal determined theimpugned provisions were unconstitutional and assessed the cases on that basis.

The Supreme Court of Canada ultimately confirmed theAppeals Tribunal’s authority to decide the constitutional question, as well as its decision on that question. The Supreme Court of Canadamade a general declaration of invalidity in relation to the impugned provisions, which it postponed for 6 months to conserve the existingbenefits program until a legislative response could be implemented. However, at paragraph 120, it stated that the postponement wouldnot block the Appellants’ entitlement to benefits. [69] Dr.

French argues that, since the litigants in Martin were found to be entitled to benefits even though the generaldeclaration of invalidity was postponed, the same result should obtain in the case at hand. However, in my view, that aspect of Martincan be distinguished as follows. [70] In Martin, the constitutional question was raised on appeal to a tribunal within the workers’ compensation process.It was not raised in an after-the-fact application as in the case at hand. [71] The Appeals Tribunals hear proceedings de novo.

Therefore, it did not matter that the issue was not raised before theBoard. [72] In Martin, the constitutional issue was raised while the impugned provisions were still in effect. In the case at handthey had already been repealed. [73] In my view, these distinguishing features make it such that Martin does not support a conclusion that I should determine themerits of the constitutional question in the case at hand on the basis that it is sheltered. [74] Rather, paragraph 121 of Martin supports the opposite conclusion. It noted that Ms.

Laseur did not challenge theconstitutionality of the permanent impairment guidelines before the Appeals Tribunal. The Supreme Court of Canada did not, in thecircumstances, determine the issue of the constitutionality of those guidelines. It referred the matter back to the Board on the basis of thesubsisting provisions. The Court added that, if the constitutionality of those guidelines were raised, the Board would have to “considerand decide the issue in accordance with” the reasons in Martin.

The Court, at paragraphs 62 to 64, outlined its reasons for concluding:the Board had jurisdiction to apply the Charter; but, could refer a Charter question to the Appeals Tribunal instead. At paragraphs 66 to117, the Court provided its reasons for concluding s. 10B of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10, and the FunctionalRestoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96, were unconstitutional. Presumably those are thereasons the Court was referring to.

The Court gave no indication that, if it had not been able to refer the matter back to the Board on thesubsisting provisions, it would have determined that issue itself. Therefore, in my view, Martin supports a conclusion that a reviewingcourt ought not entertain a Charter challenge not raised before the administrative body or bodies in question. If the matter happens to bereferred back for another reason, then the matter before that body has remained alive and it may be able to treat issues properly raisedbefore it as having been engaged as part of the initial complaint filed. [75] Dr.

French also argues Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22, demonstrates that a retroactive individual remedy is available in the case at hand. [76] Ms. Tétreault-Gadoury lost her job after reaching age 65. Her application for benefits was denied. She appealed tothe Board of Referees on the basis that the provision disentitling her to ordinary employment insurance benefits after age 65 wasunconstitutional. The Board dismissed the appeal without deciding the constitutional question. She appealed directly to the Federal Courtof Appeal.

It found a violation of s. 15 of the Charter and that the Board ought to have considered the Charter issue. The governmentrepealed the impugned provision retroactive to the date of the Federal Court of Appeal’s decision. The Supreme Court of Canada allowedthe appeal from that decision on the basis that the Federal Court of Appeal did not have jurisdiction to make a final determination on theconstitutional question. Its jurisdiction was limited to overseeing decisions of administrative bodies and referring the matter back for re-determination.

It found that the umpire had jurisdiction to determine the constitutional validity of the impugned provision, and todetermine what benefits should be awarded, disregarding the impugned provision, if found to be invalid. The Supreme Court of Canada,nevertheless, considered the constitutional question and found the impugned provision unconstitutional. It also stated, at paragraph 59,that: “The appropriate forum for the adjudication of this constitutional question, the principles governing which are set forth in thesereasons, is the umpire.”

[77] In my view, the case at hand is distinguishable from Tétreault-Gadoury. In Tétreault-Gadoury the matter camebefore the Supreme Court of Canada by way of appeals which initiated from the Board’s decision. In addition, the constitutionalquestion was raised before the Board while the impugned provision was still in effect. Therefore, the matter was not separate from theadministrative stream, and there was no need for a retroactive remedy.

In the case at hand, in my view, the application is separate fromthe administrative stream, and was only made after the legislature removed the impugned provision. [78] A further distinguishing feature is highlighted in the Tétreault-Gadoury case itself. At paragraph 48, in discussing the minimalimpairment branch of the s. 1 analysis, the Court referred to McKinney.

As stated by Peter Hogg, in “Constitutional Law of Canada,Fifth Edition, Volume 2” (2007 Thompson Canada Limited – Scarborough), at page 672: “The Court distinguished McKinney on three grounds: (1) that a university was a ‘closed system with limited resources’, (2) that ‘facultyrenewal’ was ‘crucial to extending frontiers of knowledge’; and, (3) that ‘academic freedom’ required a minimum of performance reviewup to retirement age.” [79] In my view, the fact that McKinney dealt with a university which has a “closed system with limited resources” is relevant tomore than just the minimal impairment inquiry.

It also makes imposing a retroactive remedy even less appropriate. We are also dealingwith a “closed” university system in the case at hand. Therefore, the same distinction applies. [80] Given these distinctions, in my view, Tétreault-Gadoury does not establish that a retroactive remedy is available inthe case at hand. [81] Dr. French acknowledged the statement, at paragraph 89 of Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679,that: “An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the ConstitutionAct, 1982.

Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the endof the matter. No retroactive s. 24 remedy will be available." [82] In his view, Schachter is distinguishable on the basis that the appeal was not heard by a tribunal within the employmentinsurance system. Instead, the parties agreed that the Federal Court was the better forum. He says this amounted to an abandonment ofthe administrative proceedings, which he has not done in the case at hand. [83] However, in my view, even though Dr.

French is still seeking a review of the HRC’s decision in a collateralproceeding, this application is separate from that process. Dr. French characterized this application as being a way of giving notice to theAttorney General. However, such notice can be given as part of a notice for judicial review, or even as part of the initial complaintprocess. It is not necessary to file a separate application to give notice to the Attorney General.

Therefore, this application is at least asseparate from the administrative proceedings preceding it, as was the case in Schachter. [84] In addition, in Schachter, the parties agreed to deal with the matter in the Federal Court. It would not be reasonable, nor fair, tofind that Mr. Schachter’s available remedies would be diminished by such an agreement.

Conclusion Regarding Whether the Constitutional Question Raised in this Application Moot? [85] The AG submits that the findings and reasoning in three cases decided in Saskatchewan, in circumstances similar tothose in the case at hand, lead to a conclusion that the constitutional question in this application is moot. Those cases are: Leeson v.University of Regina, 2007 SKQB 252; Saskatchewan (Human Rights Commission) v. Carlson, 2008 SKQB 312; and, University ofRegina v. Kly, 2011 SKQB 93.

[86] Dr. French argues that Leeson is distinguishable on the basis that it involved an application to court only, and no correspondingcomplaint under the Human Rights Code. Dr. French argues that, without such a corresponding complaint, there was no remedyavailable. However, Mr.

Leeson’s application was filed prior to the coming into force of legislation removing the impugned provisions.Consequently, there was no need to give retroactive effect to a declaration of invalidity. [87] Leeson dealt with an application to for “a declaration that the definition of ‘age’ contained in … The Saskatchewan HumanRights Code, … to the extent that it [permitted] mandatory retirement plans, policies or agreements” was unconstitutional. At paragraph12, the Court stated: “The application in this matter speaks from the date it is filed, which was June 12, 2007.

If this matter were to proceed the issue wouldbe whether the law was constitutional on June 12, 2007.” [88] The matter was decided July 16, 2007. The legislation removing the impugned provisions was to come into force November17, 2007. There appeared to be no impediment to the Court granting a remedy if it had found the impugned provisions unconstitutional asof June 12, 2007.

However, at paragraphs 10 and 12, the Court: noted the direction of Justice LaForest in McKinney, that “generally, thecourts should not lightly use the Charter to second guess legislative judgment as to how quickly it should proceed in moving towards theideal of equality”; and, declined to engage in such second-guessing.I reject Dr. French's argument that the relevant date in the case athand is the date the human rights complaint was filed.

I have already found that the Complaint did not raise a constitutional question.Therefore, as noted in Leeson, the relevant date is the date on which this application was filed. That was on August 24, 2010. At thattime, the impugned provisions had already been removed by the legislature. Therefore, there is even less reason to “second guess” thelegislature in the case at hand. [89] Carlson dealt with an appeal from a decision of the Human Rights Tribunal dismissing Ms. Carlson’s complaint of agediscrimination arising from being forced to retire at 65.

It held that the definition of age as being “any age of eighteen years or more butless than sixty-five years” infringed s. 15 of the Charter, but, finding itself bound by McKinney, concluded it was justified under s. 1.The complaint had been filed November 12, 2003, well before the legislative changes to the impugned provision came into force onNovember 17, 2007. The Tribunal rendered its decision on October 24, 2007, just before the coming-into-force of those changes. Thecourt found the appeal to be moot for two reasons.

Firstly, it held, pursuant to the passage from paragraph 89 of Schachter, which Iquoted above, that: “A declaration that ‘age’ as it was defined in the Code contravenes s. 15 of the Charter cannot be maderetroactively.” Secondly, it found it could not order compensation to Ms. Carlson because: “Compensation is only payable when a person ‘contravenes any provision’ of the Act. Contravention of the Act requires

an act oromission; intent must be proved. The component of mens rea in the act or omission is clearly required in s. 35 of the Code, which statesthat one may be guilty of an offence if that person ‘contravenes or fails to comply with an order under s. 31.3, 31.4, …’ One cannotcontravene a provision of the Code if one is acting in compliance with the Code, as is the situation of the respondents to this appeal.” [90] It is on the basis of this second reason that Dr. French seeks to distinguish Carlson.

He points to s. 34(8) of the HRA whichstates: “A board of inquiry may order any party who has contravened this Act, to do any act or thing that constitutes full compliance with theAct and to rectify any injury caused … or to make compensation therefor … .” [91] Dr. French correctly points out that s. 34(8) of the HRA does not require proof of intention to contravene the HRA. [See NovaScotia Construction Safety Association v. Nova Scotia (Human Rights Commission), 2006 NSCA 63, at paragraph 112, in which casethere was an award of damages as outlined at paragraphs 134 to 138. ] [92] In Canada v.

Taylor, (SCC), [1990] 3 S.C.R. 892, the Court, at paragraph 67, stated (with case referencesomitted): “An intent to discriminate is not a precondition of a finding of discrimination under human rights codes. The preoccupation with effects,and not with intent, is readily explicable when one considers that systemic discrimination is much more widespread in our society than is

intentional discrimination. To import a subjective intent requirement into human rights provisions, rather than allowing tribunals to focussolely upon effects, would thus defeat one of the primary goals of anti-discrimination statutes.” [93] I did not see any special characteristic of the Sakatchewan Human Rights Code exposed in Carlson which would take it outsidethe general rule in Taylor, and require proof of subjective intent to contravene the Code to award compensation. The remedialprovisions of both the Saskatchewan Code and the HRA permit a remedy for a contravention of the Act.

Thus, assuming theSakatchewan Code is not an aberration from other human rights codes, the availability of remedies in Nova Scotia is sufficiently similarto that in Saskatchewan that it is not a proper basis on which to distinguish Carlson. However, if Carlson is in error in stating thatcompensation is dependent on proof of intent, it eliminates the second reason for a finding of mootness; leaving only the first. [94] University of Regina v.

Kly, 2011 SKQB 93, dealt with two applications to quash the decisions of the Sakatchewan HumanRights Tribunal to refer, to a full inquiry, age discrimination complaints arising from mandatory retirement. Both individuals involvedwere forced to retire at age 65, before that upper limit was removed from the definition of age in the Saskatchewan Human Rights Code.One of them, Dr. Kly was a tenured university professor.

The Court granted the applications to quash the decisions of the tribunal torefer the matters to a full inquiry on the basis that: “Such a conclusion ignores or fails to apply the decisions of this Court … in the Carlson and Leeson cases which raised these very sameissues and arguments. It also disregards the continuing effect of the McKinney decision of the Supreme Court which the Supreme Courthas not had occasion to reverse or repudiate.” [95] Dr. French argues Kly was wrongly decided in that it failed to appreciate the distinction between situations where a remedycould be given and where it could not.

To the extent that Kly may have relied on the second reason in Carlson, Dr. French’s argumentmay have some merit. However, Kly relied on Carlson as a whole, including the first reason for finding mootness in that case. [96] In addition, Kly relied on the fact that the Supreme Court of Canada had not overruled McKinney.

That suggests thecourt in Kly was of the view that neither it, nor a Tribunal conducting a full inquiry, could reach a different result on the issue of theconstitutionality of mandatory retirement until the Supreme Court of Canada overruled itself. [97] That view is supported by Canada (Attorney General) v. Bedford, 2012 ONCA 186, where the Court, at paragraph80, stated: The application judge also relied on Leeson v. University of Regina (2007),2007 SKQB 252 , 301 Sask.

R. 316 (Q.B.).However, Leeson fails to support the proposition that a court of first instance can reconsider and effectively overrule a binding precedentfrom the Supreme Court. In Leeson, the court acknowledged that where a plaintiff has alleged changes in the social, political andeconomic assumptions underlying a prior decision of the Supreme Court and has alleged some facts that could support those changes, itwas not appropriate to prevent the plaintiff from proceeding with the claim on the basis of stare decisis.

This observation would allowthe plaintiff to build the necessary record, but says nothing about whether any court other than the Supreme Court has the power tooverrule its prior decision.” [98] So even if the Court in Kly was mistaken in basing its conclusion on the reasoning in Carlson that there was no remedyavailable because of lack of intent and no retroactive individual remedy available, it still had the other reasons for its conclusion.

Thoseincluded the inappropriateness of the second-guessing the coming-into-force date chosen by the legislature, as noted in Leeson, and thecontinuing binding effect of McKinney which lead to an inevitable conclusion. Dr. French has not argued that Kly was wrongly decidedin those respects; and, in my view it was not. [99] Based on these points, in my view, the results in Leeson, Carlson, and Kly were proper, and contain no distinguishing featureswarranting a different result in the case at hand.

They support a finding of mootness (and of constitutional validity) in the case at hand. [100] In my view, there is no appropriate retroactive remedy available on this application. The impugned provision has already beenrepealed. Therefore, the case “fails to meet the ‘live controversy’ test” as outlined in Borowski v Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at paragraphs 15 to 25; and, the matter is moot.

[ 101 ] However, Borowski , at paragraphs 16 and 29 to 42 , notes that there may be circumstances where the Court should exercise its discretion to hear a matter even though it is moot. 2.

Should the Court Exercise its Discretion to Determine the Merits of this Application Even if it is Moot? [ 102 ] Borowski , at paragraphs 29 to 42 , outlined the following broad rationale behind a court determining matters that are moot: i.) Ensuring issues are determined within “ an adversarial context ” ; ii.) “ Conserving judicial resources ” ; and, iii.) Being “ sensitive ” to its adjudicative role and refraining from “ intruding into the role of the legislative branch ” . [ 103 ] This application was heard in an adversarial context. Dal responded with affidavit evidence.

The AG and Dal both responded with ample representations. However, most of those representations were directed at the issue of mootness. [ 104 ] Borowski , at paragraphs 34 to 39 , gave examples of “ special circumstances ” which would justify using up judicial resources in determining a matter that is moot.

They include where: i) “ The court ’ s decision will have some practical effect on the rights of the parties notwithstanding it will not have the effect of determining the controversy which gave rise to the action ” ; ii) It is a case “ of a recurring nature but brief duration ” , such as the “ validity of an interlocutory injunction prohibiting certain strike action ” ; and, iii) “ The social cost of uncertainty in the law ” created by “ leaving the matter undecided ” outweighs the importance of judicial economy ” . [ 105 ] A determination on the constitutional validity of s. 6(

h) before it was repealed would only “ have a practical effect on the rights of the parties ” if it was a question that could properly be addressed as part of the Judicial Review of the decision of the HRC herein, the Notice for which bears Halifax File Number 334777. If that is the case, the question will be determined in that proceeding. Therefore, it is of no benefit to determine it in this proceeding. [ 106 ] This is not a case of a recurring nature. The impugned provision has been repealed. The issue of its constitutional validity ought not be a recurring one. [ 107 ] The repeal of s. 6(

h) leaves no uncertainty in the law to be addressed. [ 108 ] In my view, there are no special circumstances in the case at hand which would justify using judicial resources to determine a moot question. [ 109 ] The Nova Scotia Legislature has already acted proactively to repeal the impugned provision. To inquire into the reasonableness of the effective date that repeal, in the absence of a “ live controversy ” , would, in my view, be an unjustified intrusion “ into the role of the legislative branch ” .

[ 110 ] Based on the foregoing, I am of the view that this is not a case in which I should exercise my discretion to determine a matter that is moot. 3. If the Application is Not Moot, or If the Court Should Exercise its Discretion to Determine the Merits of the Application, Was S. 6(

h) of the HRA Unconstitutional When Dr. French Was Forced to Retire on July 1, 2008? [ 111 ] Given my conclusion in relation to the first two broad issues, it is unnecessary for me to address this question. [ 112 ] However, even if this was a proper case in which to determine the constitutionality of s. 6(

h) of the HRA at the time Dr. French was forced to retire, I would not find it to have been unconstitutional at that point, nor at any point prior to the coming-into-force of the legislation repealing it, for the reasons which follow. [ 113 ] First of all, in my view, as noted in Carlson and Kly , I am bound by the McKinney decision which upheld the constitutionality of mandatory retirement in the context of university professors. The Supreme Court of Canada has not overruled its decision in McKinney . It has not been presented with the opportunity to do so.

As alluded to in Kly , at paragraph 43 , and as noted in Bedford , at paragraph 80 , this Court cannot “ reconsider and effectively overrule a binding precedent from the Supreme Court [of Canada] ” even where “ a plaintiff has alleged changes in the social, political and economic assumptions underlying a prior decision of the Supreme Court [of Canada] and has alleged some facts that could support those changes ” . [ 114 ] Bedford further noted that, despite the inability to overturn a prior decision of the Supreme Court of Canada, a claim alleging such changes should not be stopped “ on the basis of stare decisis ” and the claimant should be allowed to “ build the necessary record ” .

In the case at hand, Dr. French had the opportunity to present all the evidence and submissions he wanted in support of his allegations that there had been sufficient changes since McKinney to warrant overturning that decision. Therefore, the “ record ” has been built. [ 115 ] Secondly, finding s. 6(

h) to have been unconstitutional, prior to coming-into-force date for legislation repealing it, would, in my view, be failing to give proper deference to the Nova Scotia Legislature ’ s choice of date.

The requirement for such deference is highlighted at paragraph 131 of McKinney , where the court stated: “[G]enerally, the courts should not lightly use the Charter to second-guess legislative judgment as to just how quickly it should proceed in moving forward towards the ideal of equality. … Some of the steps adopted may well fall short of perfection, but as earlier mentioned, the recognition of human rights emerges slowly out of human condition, and short or incremental steps may at times be a harbinger of a developing right, a further step in the long journey towards full and ungrudging recognition of the dignity of the human person. ” [ 116 ] On March 29, 2007, Bill 163, An Act Respecting the Elimination of Mandatory Retirement was introduced.

It included a provision for the repeal of s. 6(

h) of the HRA . It was to come into force one year after receiving Royal Assent. The reason for that delay was noted by the Honourable Maureen MacDonald, during the Second Reading, on April 3, 2007, as being to give “ some lead time to the employers in the province to prepare their workplaces for any possible impact ” . [ 117 ] The delay period was later extended to July 1, 2009 or later.

During the Third Reading, on April 12, 2007, The Honourable Mark Parent, Minister of Environment and Labour, explained that the delay period was extended to provide “ two years for collective agreements ” . [ 118 ] Bill 163 was passed, received Royal Assent, and came-into-force on July 1, 2009, the earliest date. [ 119 ] In my view, it was not unfair, nor unreasonable for the Legislature to delay the coming-into-force date to July 1, 2009, to allow: preparation time for employers; and, collective agreements more time to run their course and be renegotiated under a new set of anti- discrimination rules respecting mandatory retirement.

These twin objectives are sufficiently “ pressing and substantial ” to warrant delaying the removal of an exception to the right to equality and freedom from age based discrimination. The delay is necessary for, and

thus is rationally connected to, these objectives, and minimally impairs the right. The delay in question is, in my view, well within the range of reasonably acceptable periods of delay. [ 120 ] The decision to delay was made in the face of McKinney , which had ruled mandatory retirement constitutional. In addition, at the time, the mandatory retirement landscape across Canada was still in the process of changing. The affidavit of David MacGregor, sworn May 2, 2011, at paragraphs 18 to 36, describes that changing landscape.

At paragraphs 24, 26, 27, 29, and 31, he noted: “University of Toronto broke ranks with Canadian universities in March 2005 with a unilateral decision to abolish the practice. …. In December 2006, the province of Ontario abolished mandatory retirement … . The result was a cascade of legislation and voluntary agreements across Canada that extinguished the rule in most provincial workplaces and every university. …. … New Brunswick voluntarily abandoned the policy permanently in 2010 (an earlier agreement had temporarily shelved the practice in 2009). ….

To my knowledge, mandatory retirement in academia in Canada survives only in Manitoba … .” [ 121 ] Therefore, Nova Scotia ’ s choice of implementation date is in conformity with the general trend across Canada, despite McKinney . This supports the reasonableness of the implementation date. [ 122 ] In my view, to interfere with the Legislature ’ s choice of implementation date, in the circumstances of the case at hand, would be failing to give appropriate deference to the role and choice of the Legislature. CONCLUSION [ 123 ] Based on the foregoing, I conclude that: 1.

It would not be appropriate to grant a retroactive remedy in the case at hand, rendering the application moot because s. 6 (

h) of the Human Rights Act has already been repealed;

2. It is not a proper case to exercise my discretion to determine a moot issue; 3. I am bound by the Supreme Court of Canada decision in McKinney to determine s. 6 (

h) is constitutional; and, 4. It would be inappropriate, in the circumstances of this case, to interfere with the Legislature ’ s choice of date for the implementation of the legislation repealing s. 6 (h). [ 124 ] Therefore, Dr. French ’ s application is dismissed. COSTS [ 125 ] If the parties cannot agree on the issue of costs, I will receive submissions in writing on that issue. ____________________________ MUISE, J