BC Human Rights Tribunal Rules Exclusion from Disability Benefits and Mandatory Retirement Not Discriminatory

July 2015

Article by: Gabrielle Scorer

The BC Human Rights Tribunal (“Tribunal”) recently considered the application of s. 13(3)(b) in two age discrimination complaints. The Tribunal dismissed both complaints on preliminary applications.

In Johnston obo others v. City of Vancouver (No 2), 2015 BCHRT 90 [Johnston] the complainant alleged age discrimination because the employer did not provide long term disability benefits to employees once they reached age 65. The complainant in Yaremy v City of Vancouver (Fire and Rescue Services) and Vancouver Fire Fighters’ Union, Local 18, 2015 BCHRT 98 [Yaremy] argued that the mandatory retirement age of 60 for firefighters was discriminatory.

The City of Vancouver was the respondent in both cases. In Johnston, the City’s position was that exclusion from long term disability benefits upon employees attaining age 65 was related to the operation of a bone fide group or employee insurance plan. In Yaremy, the City maintained that the mandatory retirement age for firefighters was related to the operation of a bona fide retirement, superannuation or pension plan. The City argued in both cases that the exception to a finding of discrimination provided in s. 13(3)(b) of the Code applied and the complaints should be dismissed.

In both cases the Tribunal considered whether it should apply the legal framework set out in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 [Zurich] or New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45 [Potash]. The notable difference between the two decisions is that Zurich requires that for the impugned plan to be bona fide, it must also be reasonable. The City argued in both cases that the Tribunal should follow the Supreme Court of Canada’s decision in Potash, which determined that in an analysis of language like that set out in s. 13(3)(b) of the Code, a reasonableness requirement need not be imported.

In Johnston the Tribunal noted that past decisions of the Tribunal considering s. 13(3)(b) had applied the test from Zurich. The Tribunal concluded in Johnston that Potash set out the appropriate approach in respect of s. 13(3)(b) of the Code and that the reasonableness of the plan need not be proven . After examining the evidence and applying the test in Potash, the Tribunal determined that the disability plan was legitimate, adopted in good faith and not for the purpose of defeating protected rights. The plan was therefore bona fide and the complaint was dismissed pursuant to s. 27(1)(b) on the basis that the acts alleged in the complaint did not contravene the Code.

In Yaremy the collective agreement required all firefighters to retire at age 60. The pension plan indicated a “normal” retirement age for firefighters at that age but did not mandate it. The City argued that mandatory retirement found in the collective agreement, together with various pension rules and agreements, together operated as a bona fide retirement, superannuation or pension plan within the meaning of s.13(3)(b).

Noting the Tribunal’s determination in Johnston that Potash is the governing case regarding interpretation of s. 13(3)(b), the Tribunal concluded that the collective agreement and other pension and supporting documents worked together to make up a bona fide retirement, pension or superannuation plan adopted in good faith and not for the purpose of defeating protected rights. The exception in s. 13(3)(b) applied and the Tribunal concluded there was no reasonable prospect that the age discrimination complaint would succeed.

These cases are important because they establish that a respondent relying on s. 13 (3)(b) of the Code is not required to prove the impugned plan or scheme is “reasonable” in addition to being bona fide. The decision in Yaremy also confirms that the plan or scheme in question must be considered “broadly and in context”, having regard to evidence of an inter-connected set of rules, which may be expressed in more than one document.