A bus driver who was required to retire at age 65 made a human rights complaint alleging discrimination. A Nova Scotia Board of Inquiry under the Human Rights Act found discrimination, but the School Board successfully appealed from this determination.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights complaints – Discrimination – Age – Mandatory retirement – Labour law – Collective agreements – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter

Tri-County Regional School Board v. Nova Scotia (Human Rights Board of Inquiry), [2015] N.S.J. No. 10, 2015 NSCA 2, Nova Scotia Court of Appeal, January 15, 2015, P. Bryson, M.J. Hamilton and J.E. Scanlan JJ.A.

James Holland was a school bus driver with the Tri-County Regional School Board. He was also a member of the CUPE Local 964 staff pension plan requiring him to retire at the end of the school year in which he turned 65. He attempted to stay on in his position as bus driver but the School Board declined any extension. Holland complained to the Human Rights Commission.

The Board of Inquiry Chair under the Nova Scotia Human Rights Act determined that Holland’s retirement was discriminatory conduct that was not saved by the exceptions in the Human Rights Act. The applicable exception appears at section 5 of the Human Rights Act which reads, in part, no person shall in respect of employment discriminate against an individual on account of age, but this does not apply to prevent, on account of age, the operation of a bona fide retirement or pension plan or the terms or conditions of a bona fide group or employee insurance plan, or to preclude a bona fide plan scheme or practice of mandatory retirement.

The pension plan addressed retirement by requiring that a member retire on his normal retirement date unless a postponement could be obtained through written agreement of the employer. Postponement could not go beyond the end of the calendar year in which the member reached age 71, in any event.

The issue was whether the Board unreasonably concluded that the pension plan exception permitting discrimination based on age did not apply to Holland. A reasonableness standard of review was found to be appropriate where the Board was primarily involved in interpreting and applying the Human Rights Act, its home statute.

In New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, Justice Abella for the majority described a “bona fide pension plan” as a legitimate pension plan that can include terms and conditions such as mandatory retirement, where a holistic analysis of the plan is made, rather than a piecemeal analysis.

The Board had found that Holland’s pension plan was bona fide, and its bona fides could not be removed by the fact that the Board declined to grant a discretionary extension. Holland was required to retire pursuant to a bona fide pension plan. Some indicia of the bona fides of a plan include registration under applicable provincial and federal legislation, and such registration had occurred in the case of this pension plan.

The court held that the Board misconstrued its role and that its choice of principles and analysis was not reasonable. Human rights legislation is not a license to rewrite legislation as a tribunal might like it. A bona fide pension plan cannot be defeated by the discretion granted to an employer to decide whether or not to extend an employee’s work past the initial mandatory retirement date. This pension plan was intended to provide retirement support for its members. Nothing in the records suggested that this pension plan was a sham or intended to defeat protected rights. The Board’s analysis was unreasonable. The appeal was allowed and the decision of the Board was set aside without costs.

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