French v. Dalhousie University 2012 NSSC 394
Civil Rights - Equality and protection of the law - Particular cases - Mandatory retirement
The collective agreement between Dalhousie University and its faculty association required professors to retire at age 65. French, forced to retire at age 65 in July 2008, filed a discrimination complaint. At that time, s. 6(h) of the Human Rights Act provided that mandatory retirement due to a bona fide mandatory retirement plan did not constitute discrimination. Legislation to repeal s. 6(h) was enacted in 2007, but not proclaimed in force until July 2009. French claimed that the mandatory retirement plan was not bona fide. He did not challenge the constitutionality of s. 6(h) as violating the Charter. The Human Rights Commission dismissed the complaint without referring it to a Board of Inquiry, finding that there was no reasonable likelihood that an investigation would reveal evidence of discrimination contrary to the Act. French applied for judicial review and, for the first time, challenged the constitutionality of s. 6(h). At issue was whether the court should determine a Charter issue not previously raised and, if so, whether the Commission erred in not finding s. 6(h) contrary to the Charter. Finally, French argued that the Commission erred in law in not referring the complaint to a Board of Inquiry for investigation.
The Nova Scotia Supreme Court, in a judgment reported  N.S.R.(2d) TBEd. DE.008, dismissed the application. Applying the reasonableness standard of review, the Commission did not err in finding no reasonable likelihood of an investigation revealing evidence of discrimination on the basis that the forced retirement was excepted from discrimination on the ground that there was a bona fide mandatory retirement plan. The court declined to consider the constitutionality of s. 6(h), as it was not raised before the Commission. Further, it was reasonable for the Commission to treat s. 6(h) as constitutionally valid and not refer the matter to a Board of Inquiry. In August 2010, after s. 6(h) had been repealed, French applied for an order declaring s. 6(h) invalid for violating equality rights under s. 15 of the Charter.
The Nova Scotia Supreme Court dismissed the application. First, since s. 6(h) was repealed by the time French’s application was commenced, the issue of constitutional validity was moot. Applying the Borowski factors, this was not an appropriate case to determine the constitutionality of s. 6(h) notwithstanding the issue was moot. In any event, the court would not have retroactively invalidated s. 6(h). When French was mandatorily retired, the court was bound by McKinney v. University of Guelph (SCC) to determine that mandatory retirement violated equality rights, but was a reasonable limit prescribed by law under s. 1. Accordingly, the court could not retroactively declare s. 6(h) to be constitutionally invalid. The court noted that McKinney found that “the courts should not lightly use the Charter to second guess legislative judgment as to how quickly it should proceed in moving towards the ideal of equality”.