The Place of Human Rights Legislation: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc
New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc, 2008 SCC 45 (“Potash”), provides an interesting debate on how to interpret human rights law. While legal observers might have safely assumed that this is no longer a question, this case, in its departing analysis between the majority and minority, begs one to reconsider.
The idea that human rights legislation has been regarded as quasi-constitutional and deserving of broad, purposive and liberal interpretation (Ontario Human Rights Commission v. Simpsons-Sears Ltd.,  2 S.C.R. 536, Insurance Corporation of B.C. v. Heerspink,  2 S.C.R. 145, at pp. 157-58, British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 (“Meiorin”) at para. 50; Zurich Insurance Co. v. Ontario (Human Rights Commission),  2 S.C.R. 321, at p. 339; Brossard (Town) v. Quebec (Commission des droits de la personne),  2 S.C.R. 279, at p. 307; Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 376) seems to have been disregarded by the majority.
The decision in this case shows how human rights statutes are dealt with outside constitutional interpretation at least insofar as the majority decided (Abella J. – Binnie, LeBel and Rothstein JJ. concurring). The minority (McLachlin C.J. – Deschamps and Charron JJ. concurring), however, emphasized the quasi-constitutional basis of human rights law and as a result applied a different statutory interpretation scheme than the majority’s. At a general level, I believe that the minority in this case tried to reposition the significance and exceptional nature of human rights law in Canada.
The facts and judicial history
The case stems from a complaint filed with the New Brunswick Human Rights Commission (“NB-HRC”) by an employee who was asked to retire at the age of 65 pursuant to a mandatory retirement policy, which he claims constituted age discrimination. Unable to reach conciliation, the complaint was referred to a Board of Inquiry for adjudication. At issue was an exception to a charge of age discrimination provided in the provincial Human Rights Code under s. 3(6)(1), which allows for termination of employment pursuant to a “bona fide pension plan”.
The Board was asked to determine the meaning of bone fide pension plan within the meaning of the code. The Board concluded that, after establishing a prima facie case of age discrimination, the employer had to satisfy the three-part “bone fide occupational requirement” test from Meiorin. “A bona fide occupational qualification refers to a limit on an employee’s rights that may be permitted having regard to the context or activity at issue in the workplace” [Potash at para 51]. This furthermore can be justified if it was “(1) adopted for a purpose rationally connected to job performance; (2) adopted in good faith that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) reasonably necessary to the accomplishment of that legitimate work-related purpose: (“Meiorin”)” [Potash at para 51].
On judicial review, the Court of Queen’s Bench set aside the decision and determined a different test that required the pension plan to be both bona fide and reasonable. However, the Court of Appeal dismissed the employee’s appeal and allowed the employer’s cross-appeal. It concluded that the applicable test was whether the plan was subjectively and objectively bona fide. The Supreme Court held that the appeal should be dismissed but the majority and minority each provided a different set of reasons.
The Majority Decision
The majority said that to meet the bona fide requirement in s.3(6)(1), “a pension plan must be subjectively and objectively bona fide: it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights”. In more practical terms, the majority held that “a bona fide pension plan is any defined, registered plan that at the time of adoption was not “a sham” (para. 24). Provided that the plan was adopted in good faith and not for the purpose of subverting employee rights, it exempts the employer from the obligation not to discriminate on the basis of age, even if the mandatory retirement imposed by the plan proves to be harsh, unreasonable or unnecessary to the successful operation of the plan” (para 45).
In effect, the majority was providing a meaning for the bona fide pension plan that circumvents any need for justification. They agreed with Robertson J.A. (writing for the majority in the Court of Appeal) who rejected to import the Meiorin test. The Meiorin test was applied to determine the meaning and extent of another exception to discriminatory policies when they were pursuant to a bona fide occupational qualification.
In order to depart from the Meiorin test, the majority had to establish the difference in the meaning of bona fide between ‘bona fide occupational requirement’ in s.3(5) and ‘bona fide pension plan’ in s.3(6)(1). They did so in four ways. First, they declared that if “both ss. 3(6)(a) and 3(5) meant the same thing, both requiring a Meiorin analysis, s. 3(6)(a) would be redundant” (para 20). Second, they noted that the New Brunswick Legislature introduced a Bill in June 2005 which would have repealed s.3(6)(1) in order for employers to eventually justify mandatory retirement policies in their pension plans pursuant to Meiorin. According to the manjority, if the legislature intended that s.3(6)(1) be interpreted according to Meirorin, then they would not have proposed a bill to remove this section from the code (para 21). Third, the majority stated that the exception to age discrimination based on pensions and the exception to age discrimination based on preferences for occupation qualifications arise from “different protective concerns” (para 22). The concerns regarding pension was finding genuine financial protection to employees while ensuring they were not arbitrarily deprived of their employment rights pursuant to a sham (para 24). Fourth, the majority used the French version of the statute to establish a difference in the translated meaning of bona fide for both statutes.
The majority provides that “[b]ona fide” is translated differently in s. 3(5) and in s. 3(6)(a). In s. 3(5), “bona fide occupational qualification” is “qualifications professionnelles réellement requises”. This accords with the underlying Meiorin principle, that the qualification must truly be required for the employment. In contrast, a “bona fide pension plan” in s. 3(6)(a) is a “régime de pension effectif”. “Effectif” means “concret, positif, réel, tangible” (Le Nouveau Petit Robert (2002), at p. 838). It does not mean “required”. Clearly the legislature intended different meanings to attach to each provision. (para 27)
As a result, the majority found that the interpretation of bona fide pension plan requires a subjective and objective component (para 32). In the subjective sense, the plan should be adopted in good faith and should not be intended to subvert employee rights (para 45). In the objective sense, a bona fide pension plan is any defined and registered plan under pension benefits legislation that is not a “sham” (para 45).
The Minority Dissent
The minority disagreed with circumventing a justificatory scheme. It provided that bona fide in both ss. 3(5) and 3(6)(1) are “part of the same statute and may be expected to reflect similar concerns” (para 53). Similar to the Meiorin test for s.3(5), the minority adopted a test that “requires the employer to show that the mandatory retirement provisions of the pension plan were adopted for a purpose rationally connected to the plan and are reasonably necessary having regard to its operation and sustainability, best reflects the legislature’s intent, based on the wording of s. 3(6)(a) and the applicable principles of statutory construction” (para 57).
Unlike the majority, the minority emphasized that in cases regarding human rights statutes, there are special rules of construction that need to apply (para 65). This stems from regarding the protections they offer not merely as “statutory, but as quasi-constitutional. From this follows the principle that human rights legislation must be given a broad, purposive and liberal interpretation” (para 65). On this basis, the minority distinguished its analysis from the majority’s in four ways.
First, a purposive interpretation provides that the purpose of human rights legislation is to protect the rights of individuals from discriminatory practices – so when such rights are broken or circumvented for policy considerations, a justification must always be provided. Second, a broad, purposive and liberal interpretation subordinates strict grammatical analysis to the remedial purposes of the law (para 67). Third, courts should strive to bring consistent interpretations across similar human rights provisions unless the legislature intended otherwise. Fourth, in cases where the meaning of a human rights’ provision is open to more than one interpretation, it must then be interpreted in a manner consistent with the provisions of the Canadian Charter of Rights and Freedoms.
In applying those principles, the minority found that the use of the same term in ss.3(5) and 3(6)(1) suggests that “the legislature had something similar in mind in enacting the pension plan exemption. It suggests, more particularly, that the legislature intended to introduce the idea that the employer must justify limits imposed by pension plans on the right of employees to be free from age discrimination” (para 73). The minority further notes that this justification should then be of the same type as required in other situations where the phrase bone fide is used (para 73).
Additionally, the minority disagreed with the majority’s reliance on the definition of bona fide in Blacks Law Dictionary (8th ed. 2004), at p. 186. It seemed humorous, if not sarcastic, for the minority to suggest that “an American law dictionary is not the most authoritative source of a term that has over the decades assumed a special juridical meaning in Canadian human rights law” (para 80). More importantly, though, the minority insisted that their interpretation was not an act of reading words in the provision. Rather, they charged the majority with “artificially reading it down” and importing words to the provision by extending the scope of the s.3(6)(1) exemption to any plan that was not a sham in its adoption (para 81).
In dismissing the appeal and remitting the matter to the NB-HRC, the minority concluded that the exemption from age discrimination found in the phrase “the termination of employment… because of the terms or conditions of any bona fide… pension plan” in s. 3(6)(a) of the New Brunswick Human Rights Code, should be interpreted as follows. A bona fide pension plan under s. 3(6)(a) is one whose mandatory retirement terms:
1. were adopted for a purpose rationally connected to the operation and sustainability of the plan;
2. were adopted in good faith and not as a sham to circumvent employee rights; and
3. are reasonably necessary having regard to the operation and sustainability of the plan.
This is not an individualized inquiry, but one related to the operation of the plan. (para 89).
Noting the developments of human rights’ statutory interpretation extends beyond the objectives of this article. Regardless, one can minimally note from Potash that the divergence between the majority and minority signify the anxious state of human rights legislation in Canada. Statutory interpretation that commits to viewing human rights statute as quasi constitutional brings both a different methodology and place for their application than the type of interpretation that considers it mere legislative pronouncements. The practical difference in the minority’s choice of interpretation (broad, liberal, purposive and contextual) reads Charter values and protections (justificatory requirements inspired by s.1 Oakes test) into the scheme of human rights provided for Canadians. And that is something to which I doubt many Canadians would object.