A university professor complained that he had been discriminated against under the Universities Academic Pension Plan on the basis of gender as the pension plan provided less of a monthly pension benefit to a married male employee and his spouse than a married female employee and her spouse where the employees and their spouses are of the same age and where the employees have made the same contributions to the Plan over the same length of time. The Chief Commissioner of the Alberta Human Rights and Citizenship Commission (the “Commissioner”) dismissed the complaint as being “without merit”. The standard of review with respect to the Commissioner’s decision on legal issues or matters of mixed fact and law is that of correctness while the standard for factual findings is reasonableness simpliciter. The Commissioner’s conclusion that the complaint was “without merit” was unreasonable. The Commissioner’s function is that of a gatekeeper. His role is to determine if there is sufficient evidence to justify passing a complaint on to a human rights panel. In this case, there was sufficient basis in the evidence that the Commissioner ought to have advanced this matter to the next stage.

26. November 2002 0

Administrative law – Human rights complaints – Discrimination – Gender – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

Mis v. Alberta (Human Rights and Citizenship Commission), [2002] A.J. No. 1320, Alberta Court of Queen’s Bench, October 29, 2002, Lee J.

The applicant university professor sought to set aside a decision of the Commissioner dismissing his complaint of gender discrimination as being “without merit”. The professor complained that under his pension plan, a married male employee on retirement was treated differently from a married female employee on retirement, even though they made identical pension contributions and the actuarial liability to the pension plan (for both the employee and the spouse) was the same. This resulted in a smaller pension to both the male employee and his spouse. The professor also contended that gender neutral mortality tables were one method of eliminating this discrimination.

The function of the Commissioner is that of gatekeeper. His role is to determine if there is sufficient evidence to justify the passing of a complaint on to a human rights panel. The Commissioner is not acting as an adjudicator. Any expertise with which the Commissioner is credited is limited to an assessment of the facts. His decision in that regard attracted a standard of review of reasonableness simpliciter. On matters of law, the Commissioner must be correct.

Section 7(1) of the Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, prohibits discrimination in employment based on race, religion, colour, gender, disability, marital status, ancestry, place of origin, family status or source of income. Section 7(2) indicates that s. 7(1) “as it relates to age and marital status” does not affect the operation of any bona fide pension plan. In the present case, the Commissioner was in error in concluding that gender is analogous to the grounds of “age” and “marital status” found in s. 7(2) and therefore should be regarded as exempt from the prohibition in s. 7(1).

The Commissioner was unreasonable in his conclusion that the professor was not subject to discrimination because there was no evidence that his human dignity was affected by operation of the pension plan. The requirement in Law v. Canada (Ministry of Employment and Immigration), [1999] 1 S.C.R. 497 (S.C.C.) that human dignity be affected does not necessarily demand that evidence of such be presented. A prima facie case may be established based on an enumerated ground, judicial notice and logical reasoning that the distinction amounts to discrimination. It is at least arguable that the professor’s human dignity was affected by receiving of a lesser pension benefit than a female and that this constitutes discrimination.

The Commissioner was also unreasonable in concluding that all group pension plans discriminate on the basis of gender. Under s. 11, a contravention of the Act is permissible if it is “reasonable and justified”. A discriminatory practice will be considered reasonable if, “(a) it is based on a sound and accepted insurance practice; and (b) there is no practical alternative”, Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at pp.342-343. The use of “justifiable” also imputes an element of fairness into the analysis. The onus to establish a reasonable and justifiable contravention was on those who sought to defend the pension plan. They must establish there was no practical alternative to the current pension plan and, contrary to what was suggested by the Commissioner, the applicant was not required to provide evidence of a non-discriminatory plan. The Commissioner also failed to consider evidence of other pension plans which arguably are less or non-discriminatory or consider that a plan may still be regarded as fair even if it had an adverse effect on another group, if that adverse effect was simply an elimination of an undeserved advantage.

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