FEDERAL COURT OF APPEAL MEMORANDUM OF FACT AND LAW OF THE CANADIAN HUMAN RIGHTS COMMISSION

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1 Court File Nos: A , A , A FEDERAL COURT OF APPEAL Between: ROBERT ADAMSON ET AL and AIR CANADA and AIR CANADA PILOTS ASSOCIATION Appellants -AND- CANADIAN HUMAN RIGHTS COMMISSION and DONALD PAXTON Respondents MEMORANDUM OF FACT AND LAW OF THE CANADIAN HUMAN RIGHTS COMMISSION Daniel Poulin/Erin Collins Counsel Canadian Human Rights Commission 344 Slater Street, ath Floor Ottawa, ON K1A 1E1 Tel: (613) Fax: (613) Counsel for the Respondent Canadian Human Rights Commission

2 2 TO: Federal Court of Appeal 90 Sparks Street, main floor Ottawa, ON AND TO: Raymond Hall Barrister & Solicitor 2226 West Taylor Blvd. Winnipeg, MB R3P 2J5 Counsel for the Appellants Adamson et al ANDTO: David Baker Baker Law 4711 Yonge Street, Suite 509 Toronto, ON M2N 6K8 Counsel for the Appellants Adamson et al AND TO:. Maryse Tremblay Borden Ladner Gervais LLP 1000, de la Gauchetiere Street West Suite 900 Montreal, Quebec H3B 5H4 Counsel for Air Canada AND TO : Bruce Laughton, Q.C. Laughton & Company Suite West Georgia Street Vancouver, BC V6E 3V7 Counsel for Air Canada Pilots Association

3 IN DEX Page No. Memorandum of Fact and Law of the Canadian Human Rights Commission dated August 8, 2014 Overview Part I - Facts Part II - Questions at Issue 4 Part Ill - Submissions A) The Federal Court erred in applying the correctness standard a) Standards of review selected by the Federal Court b) The appropriate standard of review was reasonableness... 6 B) The Court's findings on review of the Tribunal's decision (i) The Tribunal's decision on normal age of retirement was Unreasonable (ii) Undue hardship is limited to health, safety and cost (iii) ACPA could advance a BFOR defence without modifying Meiorin.. 13 (iv) ACPA did not establish undue hardship (v) A complainant is not required to show "substantive discrimination".. 21 C) Costs Part IV - Order Sought Part V - List of Authorities

4 Court File Nos: A , A , A FEDERAL COURT OF APPEAL Between: ROBERTADAMSONETAL and AIR CANADA and AIR CANADA PILOTS ASSOCIATION Appellants -AND- CANADIAN HUMAN RIGHTS COMMISSION and DONALD PAXTON Respondents MEMORANDUM OF FACT AND LAW OF THE CANADIAN HUMAN RIGHTS COMMISSION OVERVIEW 1. These are the written submissions of the Canadian Human Rights Commission in the three appeals from the decision of Justice Annis of the Federal Court reported as Adamson et al v Air Canada. 1 The Federal Court allowed the application for judicial review in part, and ordered that the matter be returned to the Canadian Human Rights Tribunal for a redetermination of whether the evidence establishes that 60 is the normal age of retirement and of whether the appellant Air Canada Pilots Association ("ACPA") had established undue hardship. 1 Adamson et al v Air Canada, 2014 FC 83 ("FC Decision") 1

5 2. The Court properly set aside the Tribunal's findings about the normal age of retirement and the order remitting this issue should not be disturbed. However, the Court erred in assessing ACPA's evidence of undue hardship. Specifically, the Court erred in its unnecessary and novel modification of the undue hardship test as it applies to a union. Further, the Court failed to give deference to the Tribunal's expertise in applying the Canadian Human Rights Act, 2 which is the Tribunal's home statute. The Commission therefore asks this Court to set aside the order of the Federal Court as it applies to ACPA's evidence of hardship. 3. Finally, the Federal Court erred by introducing a requirement to show "substantive discrimination" as part of the prima facie case of discrimination. This is a substantial departure from the jurisprudence on the prima facie case and significantly increases the burden on complainants. The Commission submits that the "substantive discrimination" element introduced by the Federal Court is wrong in law and should be overturned by this Court. PART I -THE FACTS 4. This appeal involves a group of pilots and former pilots employed by the appellant Air Canada. They filed human rights complaints against both Air Canada and their union, ACPA, alleging that the mandatory retirement policy in their collective agreement violated CHRA by requiring them to end their employment on reaching the age of These proceedings have a long and complex history. The Commission adopts the Federal Court's summary of the procedural history and prior litigation as described in paragraphs 24 to 41, 43 and 44, and 46 to 76 of the decision under appeal. 3 2 Canadian Human Rights Act, RSC 1985 c H-6 ("CHRA"), FC Decision, supra at note 1 2

6 6. In brief, the Tribunal found that the complainants had established that the mandatory retirement policy was prima facie discriminatory based on age. Turning to defences, the Tribunal found that 60 was the normal age of retirement under section 15(1 )(c) of the CHRA and that the mandatory retirement policy was therefore not discriminatory. 7. The Tribunal further held that neither Air Canada nor ACPA had established that the mandatory retirement policy was a bona fide occupational requirement ("BFOR") under section 15(1 )(a) of the CHRA. In particular, the Tribunal found that neither Air Canada nor ACPA had shown that the mandatory retirement policy was reasonably necessary in that accommodating the pilots would cause undue hardship. 8. The Federal Court allowed the application for judicial review from the Tribunal's decision in part. Specifically, the Federal Court quashed the Tribunal's findings about normal age of retirement and remitted that issue for redetermination. This was the pilots' judicial review application. 9. The Court dismissed Air Canada's application for judicial review and found that the Tribunal reasonably concluded that it had not established undue hardship in accommodating the complainants. 10. Finally, and most significantly, the Federal Court quashed the Tribunal's finding that ACPA had not established undue hardship in accommodating the complainants. 11. In doing so, the Federal Court adopted a novel interpretation of section 15(2) of the CHRA, which stipulates the factors to consider in assessing hardship, and it modified the BFOR test from the Supreme Court's decision in British Columbia (Public Service Employee Relations Commission) v BCGSEu4 to 4 British Columbia (Public Service Employee Relations Commission) v BCGSEU, (1999] 3 SCR 3 (" Meiorin") 3

7 add an extra step based on the Federal Court's interpretation of Central Okanagan School District No 23 v Renaud Although neither Air Canada nor ACPA challenged the finding of prima facie discrimination - and, in fact, neither disputed this issue before the Tribunal 6 - the Federal Court revisited this question and introduced a requirement that complainants show "substantive discrimination" as part of the prima facie case of discrimination. PART II-QUESTIONS AT ISSUE 13. The Commission submits that the issues before this Court are: (A) Did the Court select the appropriate standard of review? (8) Did the Court properly find that: (i) (ii) (iii) (iv) (v) The Tribunal's finding that 60 was the normal age of retirement was unreasonable? The Tribunal's consideration of undue hardship, which was limited to the factors enumerated in section 15(2) of the CHRA, was incorrect in law? The Tribunal's interpretation of the BFOR defence as it applies to ACPA was incorrect in law? The Tribunal's finding that ACPA had not established undue hardship was unreasonable? A disciiminatory practice under the CHRA requires that complainants establish "substantive discrimination"? 5 Central Okanagan School District No 23 v Renaud, [1992) 2 SCR 970 ("Renaud') 6 See Adamson v Air Canada, 2011 CHRT 11 at para 3 ("Tribunal Decision") 4

8 PART Ill - SUBMISSIONS 14. In Agraira v Canada (Public Safety and Emergency Preparedness), 7 the Supreme Court of Canada considered the relationship between the administrative law standards of review and the appellate standards of review in the context of a judicial review application. The Court stated that the appellate standards of correctness and palpable and overriding error should not be confused with the administrative law standards of correctness and reasonableness. 15. The Court confirmed that the proper approach on appeal from judicial review was set forth by this Court in Telfer v Canada Revenue Agency: 6 [T]here is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. 9 A) The Federal Court erred in applying the correctness standard a) Standards of review selected by the Federal Court 16. The Federal Court's analysis of the standards of review can be found at paragraphs 78 to 85 of the reasons for the decision. 17. Citing paragraph 47 of Dunsmuir v New Brunswick, 10 the Federal Court found that the Tribunal's decision on normal age of retirement should be revievved on the reasonableness standard. 11 The Commission does not challenge the Court's application of the reasonableness standard to this issue. 7 Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 ("Agraira") 8 Telfer v Canada Revenue Agency, 2009 FCA 23 ("Telfer") 9 Telfer, supra at note 9, at para 18, quoted in Agraira, supra at note 7, at para Dunsmuir v New Brunswick, 2008 SCC 9 ("Dunsmuir') 11 FC Decision, supra at note 1, at para 80 5

9 18. The Federal Court found that the issues of (i) whether unions can advance a BFOR defence and (ii) the scope of the hardship factors entrenched in section 15(2) of the Act required a correctness standard of review. 12 The Court explained that it owed no deference to the Tribunal's findings "[b]ecause another judge of the Federal Court has made rulings on aspects of the BFOR and hardship issues" Finally, the Court found that the issue of modifying the Meiorin test as applies to unions had not previously been decided, nor had the requirement to establish substantive discrimination as an element of the term "discriminatory practice" under the CHRA, and these issues therefore required the correctness standard. 14 b) The appropriate standard of review was reasonableness 20. The Federal Court erred in its interpretation of the relevant jurisprudence. The proper standard of review for both the Tribunal's weighing of the evidence and its interpretation of the CHRA is reasonableness. 21. As this Court has stated: Reasonableness is the presumptive standard of review of a tribunal's interpretation of its own statute: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, at paragraph 34. Further, the Supreme Court has recently confirmed reasonableness to be the presumptive standard of review when the Tribunal is interpreting the Act: Canada (Canadian Human Rights Commission) v Canada (Attorney General), at paragraphs (also known as the Mowat decision) The Tribunal is a specialized body with expertise in interpreting and applying the CHRA, its enabling legislation. The CHRA requires that Tribunal members 12 FC Decision, supra at note 1, at para FC Decision, supra at note 1, at para FC Decision. supra at note 1, at para Canada (Attorney General) v Canada (Human Rights Commission) et al, 2013 FCA 75 at para 10 (citations omitted) ("Caring Society FCA") 6

10 "have experience, expertise and interest in, and sensitivity to, human rights." 16 It gives the Tribunal broad powers to inquire into complaints alleging a discriminatory practice, to fashion appropriate remedies where the CHRA is breached, and to decide all questions of fact or law necessary to decide the matter before it Taking into account the Tribunal's character and powers and the nature of its decision in this case, the Tribunal was owed deference In its decision, the Tribunal was examining the facts according to a test that had previously been set out by the Federal Court in a similar complaint (albeit one that involved very different evidence, including a statement of agreed upon facts). 19 However, this application of an earlier test does not negate the deference that was owed to the Tribunal. If less deference was owed whenever the Tribunal applied a test set down by the courts, few - if any - cases would be given deference and reviewed on the reasonableness standard. Reference to a test affects the reasonability of the decision, not the standard under which it is reviewed. 25. While the Federal Court distinguished between pure questions of fact 20 and mixed questions of fact and law, 21 it offered no explanation as to the impact of this distinction, if any, on its analysis of the issues before it. 26. In any case, the distinction between pure questions of fact and mixed questions of fact and law is no longer relevant, as both are reviewable on the reasonableness standard CHRA, supra at note 2, at s 48.1 (2) 17 See for example, CHRA, supra at note 2, at ss 49(1), 53, and 50(1) and 50(2), respectively 18 See Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at ~ara 24 ("Mowaf'); and Tahmourpour v Canada (Attorney General), 2010 FCA 192 at para 8 9 See Vilven v Air Canada, 2009 FC 367.at para 113 ("Vilven") 2 FC Decision, supra at note 1, at para FC Decision, supra at note 1, at para Dunsmuir, supra at note 10, at para 53; see also Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 39 7

11 27. The Federal Court went on to suggest that a reviewing court has a greater ability to intervene where it determines that a tribunal did not weigh relevant factors, and cites to the Supreme Court of Canada's decision in Suresh v Canada (Minister of Citizenship and lmmigration) However, Suresh was rendered many years before Dunsmuir, and is even mentioned by the Supreme Court in Dunsmuir as one of the reasons why the judicial review system must be simplified. 24 Further, a decision maker's failure to consider a significant factor could render its decision unreasonable, but would not affect whether deference is owed by a reviewing court. 29. While an exhaustive review is not required in every case in order to establish the proper standard of review, 25 one is necessary where, as here, the court identifies what it believes to be novel issues or changed circumstances that it believes justify departing from earlier jurisprudence on the same issue. 30. The Federal Court's distinction that "[c]orrectness applies where there is not a range of acceptable answers, but only a single right one" 26 is at odds with the Supreme Court's decision in Mowat. In Mowat, even though the range of reasonable outcome was but one, reasonableness was still the proper standard It is also at odds with decisions of this court. 28 While the range of possible outcomes can be narrow in matters such as statutory interpretation, 29 those matters are still reviewable on the reasonableness standard. 32. For all aspects of the Tribunal decision that are reviewed for reasonableness, this Court should only interfere if the Tribunal's conclusions fall outside the range of possible and acceptable solutions Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 ("Suresh") 24 Dunsmuir, supra at note 10, at para Dunsmuir, supra at note 10, at para FC Decision, supra at note 1, at para By interpretation, Mowat, supra at note 18, at para See, for example, Caring Society FCA, supra at note 15, at para Caring Society FCA, supra at note 15, at para 13 8

12 33. Reviewing courts are to pay respectful attention to the reasons below, and must "be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful." 31 Ultimately, so long as a decision-maker was alive to the question, and came to a result that falls within the range of reasonable outcomes, its decision will withstand reasonableness review The Commission agrees with the Federal Court judge's conclusion that deference was owed to the Tribunal's analysis and conclusions regarding normal age of retirement. 35. However, the Federal Court erred in its standard of review analysis with respect to the other issues it identified. This error is material in that a different outcome would likely have been reached had the Tribunal been afforded deference. 36. The Tribunal's analysis and conclusions abol:jt the BFOR defence should have attracted deference, given that the defence and hardship factors fall squarely within the Tribunal's expertise and involve the interpretation of the Tribunal's enabling legislation. 37. The Federal Court erred by disregarding the Tribunal's expertise in interpreting and applying its enabling legislation. The Tribunal's analysis and conclusions about the BFOR defence in section 15(1 )(a) of the CHRA and the scope of undue hardship as defined in section 15(2) should have been reviewed on the reasonableness standard. 30 See Newfoundland and Labrador Nurses' Union v Newfound/and and Labrador (Treasury Board), 2011 SCC 62 at paras ("Newfoundland and Labrador Nurses' Union") 31 Newfoundland and Labrador Nurses' Union, supra at note 30, at para Newfoundland and Labrador Nurses' Union, supra at note 30, at para 26 9

13 8) The Court's findings on review of the Tribunal's decision: (i) The Tribunal's decision on normal age of retirement was unreasonable 38. The Federal Court properly applied the reasonableness standard in reviewing the Tribunal's finding that 60 was the normal age of retirement. The Federal Court did not err in rejecting the Tribunal's restrictive interpretation of the test from the earlier decision in Vilven. 39. As the Federal Court concluded, the Vilven test, which was stated in a different evidentiary context, should be interpreted disjunctively. The Tribunal's conjunctive interpretation led to the unreasonable exclusion of eliminating the vast majority of passenger airlines in Canada from consideration. The Federal Court properly concluded that there was no evidence to suggest that applying the Vilven test disjunctively would lead to the inclusion of pilots who actually do different work from Air Canada pilots. 40. In the end, the test is the wording of section 15(1)(c) of the CHRA. While Vilven offered guidance for the interpretation of that section as it applies to Air Canada pilots, section 15(1 )(c) does not mention or require any specific type or size of plane. Just as a comparator group is but a tool to establish discrimination, 33 and the interpretation of the comparator is a question of the evidence adduced at the hearing, so the Vilven test is merely a tool for interpreting section15(1 )(c) in the context of pilots. The reasonableness of that interpretation depends on that evidence as well. 41. For these reasons, the Commission submits that the appeal should be dismissed with respect to the normal age of retirement issue and the matter returned to the Tribunal for re-determination. 33 Canada (Human Rights Commission) v Canada (Attorney General}, 2012 FC 445 at para 13 ("Caring Society FC") 10

14 (ii) Undue hardship is limited to health, safety and cost 42. The Federal Court erred in interpreting the factors relevant to undue hardship as including additional factors beyond those listed in section 15(2) of the CHRA. The Federal Court's approach leads to a conclusion contrary to fundamental principles of statutory interpretation and to a prior decision of the same court. 43. The Commission further submits that, contrary to the Federal Court's analysis, Meiorin neither justifies nor supports an interpretation of section 15(2) that expands hardship beyond the factors enumerated therein. 44. The Federal Court expanded the factors relevant to undue hardship based on its reading of Meiorin, in particular the Supreme Court's statement that "The various factors [relevant to undue hardship] are not entrenched except to the extent that they are expressly included or excluded by statute." 34 Notably, the Federal Court in Air Canada Pilots Association v Kel/y 5 relied on this same passage from Meiorin to support a conclusion that undue hardship factors are limited to those expressly included in section 15(2) of the CHRA. 45. In the decision under appeal, the Federal Court commented that "if the Meiorin decision requires a factor to be 'expressly excluded', it cannot be excluded Qy implication." 36 However, the Supreme Court did not state that undue hardship factors could only be limited by express exclusion. Rather, the Supreme Court stated that such factors could be limited either by statutory exclusion or by express statutory inclusion; inclusion by statute necessarily implies the exclusion of factors other than those which are expressly included. 46. The Federal Court speculated that the Supreme Court in Meiorin made that statement about the inclusion or exclusion or hardship factors "out of concern 34 Meiorin, supra at note 4, at para Air Canada Pilots Association v Kelly, 2011 FC 120 ("Kelly"), rev'd on other grounds in Air Canada ' Pilots Association v Kelly, 2012 FCA 209 ("Kelly FCA") 36 FC Decision, supra at note 1, at para 201 (emphasis in original) 11

15 that the hardship factors were expressed too narrowly in the CHRA" 37 and that "[i]n other words, the zeitgeist of the Supreme Court's thinking on this issue appears to be that all factors not expressly excluded in section 15(2) should be included." The Federal Court admitted that this reading of Meiorin "may be supposition on [its] part," 39 and the Commission submits that this supposition is based on an unsupported interpretation of Meiorin. While Meiorin referenced section 15(2) of the CHRA, which had recently been enacted at the time, it expressed no concern about the limitation of undue hardship factors by their express inclusion. If indeed the Supreme Court was concerned that undue hardship was being interpreted too narrowly, it has had ample opportunity to provide further guidance in the 15 years since Meiorin was decided The plain and ordinary meaning of section 15(2) of the CHRA is that an undue hardship analysis under the CHRA is restricted to the consideration of health, safety and cost. This interpretation, which is in accordance with well-known principles of statutory interpretation, was thoroughly explained and supported in the Federal Court's well-reasoned Kelly decision. The Commission adopts the conclusions of the court therein In the decision under appeal, the Federal Court respectfully disagreed with this reasoning, however, and determined that undue hardship is not limited to the factors listed in section 15(2) of the CHRA. The court's statement that it "cannot conceive why a court or legislature would place strict limitations on any evidence that might be introduced to prove hardship" 42 directly contradids the principle that, because of the fundamental and quasi-constitutional nature of human rights, any limits on those rights must be strictly construed. This 37 FC Decision, supra at note 1, at para FC Decision, supra at note 1, at para FC Decision, supra at note 1, at para For instance, in its consideration of undue hardship in Moore v British Columbia (Education), 2012 sec 61 at para 33 ("Moore"), or had allowed leave to appeal from Kelly FCA, supra at note In particular, the Commission refers this Court to paras 392 to 403 of Kelly, supra at note FC decision, supra at note 1, at para

16 principle has been repeated by the Supreme Court of Canada on multiple occasions, 43 and it was relied on with respect to this very issue in Kelly Further, contrary to the assumption of the Federal Court, a plain reading of section 15(2) of the CHRA shows that cost is not limited to purely pecuniary or financial cost. While undue hardship based on cost could be established with reference to financial cost, it could also be argued that non-pecuniary cost could be considered as well as purely financial cost. 51. The Federal Court erred in disregarding the clear wording of section 15(2) of the CHRA and improperly distinguished the Kelly decision, which had already addressed this issue. This Court should reverse the Federal Court's findings about the scope of section 15(2) of the CHRA and reinstate the previous jurisprudence on that issue. (iii) ACPA could advance a BFOR defence without modifying Meiorin 52. The Federal Court's novel modification of the BFOR test from Meiorin, found at paragraphs 220 to 227 of its decision, was without precedent and, ultimately, unnecessary. 53. The Commission agrees with the Federal Court's finding 45 that, as the Supreme Court held in Renaud, unions must be able to advance a defence against allegations that they have discriminated against their members. Interpreting section 15(1)(a) of the CHRA as not permitting a union to put fol"ward or to share in a BFOR defence regarding a workplace rule could create a regime of absoiute iiabiiity for unions whenever these workpiace ruies are found to be prima facie contrary to the CHRA. 43 See, for example, Zurich Insurance Co v Ontario (Human Rights Commission), [1992) 2 SCR 321 at para 18("Zurich Insurance"); or Brossard (Town) v Quebec (Commission des droits de la personne), t1988] 2 SCR 279 at para 56 ("Brossard') 4 Kelly, supra at note 35 paras 400 to FC Decision, supra at note 1, at paras 172 and

17 54. However, the Federal Court erred in finding that a union's ability to defend itself required modification to the Meiorin test for establishing a BFOR. 55. A plain interpretation of section 15(1 )(a) of the CHRA leads to the conclusion that, while a BFOR must be established from the point of the view of the employer, nothing prevents a union from relying on a BFOR once it is established. 56. Similarly, if an employer, for any reason, decided not to put forward a BFOR defence, nothing would prevent a union from doing so on its own behalf. Essentially, the reference in section 15(1)(a) of the CHRA to an employer denotes the burden of proof, but does not limit the ability of a non-employer respondent - such as a union - to put forward a BFOR defence. 57. In practice, there is no difference in the BFOR test or its application regardless of whether the respondent is a union or employer: it is the test from Meiorin. 58. In Oster v International Longshoremen's & Warehousemen's Union (Marine Section), Local 400, 46 the Tribunal considered a complaint brought only against a union about a workplace rule that prevented female employees from working on ships where they would be sleeping in close quarters with male employees. The Tribunal's analysis considered both Meiorin and Renaud, among other decisions, 47 before considering the respondent union's evidence to determine whether the Meiorin test was satisfied. Further, although the decision was judicially reviewed, neither the respondent union nor the Federal Court had difficulty applying Meiorin in a complaint against a union Oster v International Longshoremen's & Warehousemen's Union (Marine Section), Local 400, TD 4/00 (CHRT) ("Oster Tribunaf') 47 See Oster Tribunal, supra at note 46, at paras 53 to See International Longshore & Warehouse Union (Marine Section), Local 400 v Oster, 2001 FCT

18 59. The Federal Court's interpretation, in practice, creates a common law defence available to unions in what is a pure statutory scheme. 49 Whereas a non-union respondent can only avail itself of the statutory defences in section 15 of the CHRA, or provide a reasonable explanation to rebut the prima facie case of discrimination, the Federal Court's decision essentially created a new, common law defence that is only available to unions. This creation of a new defence runs contrary to the long-held principle that human rights are of fundamental importance, and exceptions or defences to human rights laws should be interpreted narrowly Where an employer and a union share liability for a workplace rule, this common law defence may extend to employers whose workplace is unionized. However, an employer in a non-unionized workplace would not be able to rely on the newly-created, common law BFOR defence as it only applies to unions. This distinction in the defences available to an employer depending on whether their workplace is unionized could lead to inconsistency and unfairness, and stands in stark contrast to the wording of section 15 of the CHRA, which draws no distinction between employers based on whether their workforce is unionized. 61. Therefore, this Court should allow the appeal with respect to the application of section 15(1 )(a) and the Meiorin test to ACPA. The Tribunal's decision on this issue should be reinstated. (iv) ACPA did not establish undue hardship 62. The Federal Court erred in its novel approach to ACPA's evidence of undue hardship. The Federal Court significantly expanded the use of comparator groups as an analytical tool by assessing hardship relative to a comparator group of younger pilots. 49 See Honda Canada Inc v Keays, 2008 SCC 39; and Chopra v Canada (Attorney General), 2007 FCA See, for example, Zurich Insurance, supra at note 43, at para 18; and Brossard, supra at note 43, at para 56 15

19 63. The use of comparator groups to determine whether there has been a breach of the CHRA was considered in Caring Society FC. 51 As the concept of comparator groups originated in analysis of section 15(1) of the Canadian Charter of Rights and Freedoms, 52 the Federal Court in Caring Society FC considered cases under both the Charter and human rights statutes, and noted that equality is an inherently comparative principle. 53 It then confirmed that "A comparator group is not part of the definition of discrimination. Rather, it is an evidentiary tool that may assist in identifying whether there has been discrimination in some cases." However, in this case the Federal Court did not use a comparator group analysis to determine whether a prima facie case of discrimination was made out. Rather, the Federal Court considered a comparator group of younger pilots to assess whether ACPA had established undue hardship. Essentially, it allowed the appellants to answer the actual prima facie discrimination on their part with the suggestion of new discrimination against this potential comparator group. By using a comparator group analysis in such a novel and unprecedented way, the Court erred in law. 65. In effect, the Federal Court's ruling forces complainants to not only establish a prima facie case of discrimination, but also to rebut possible discrimination against any and all comparator groups that could be raised by a respondent. It also allows a respondent to "cherry pick" the comparator group that best supports its position, and to suggest discrimination against that group as its defence, even though no such defence is found in the CHRA. 66. Further, by putting forward the comparator group as a defence, a respondent bypasses the need to establish a prima facie case of discrimination against that comparator group and the discrimination is essentially presumed. Based 51 Caring Society FC, supra at note 33, not disturbed in Caring Society FCA 52 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Charter") 53 See Law Society of British Columbia v Andrews, [1989] 1 SCR 143 at para 26 ("Andrews") 54 Caring Society FC, supra at note 33, at para 290, emphasis in original 16

20 on the Federal Court's ruling, the mere suggestion of a discriminatory effect on the comparator group is sufficient to establish a defence. 67. In Caring Society FC, the Federal Court reiterated that in many types of human rights cases there is no need for a comparator group. Furthermore, it reiterated that a test for discrimination which requires likes to be treated alike is the essence of formal equality and returns us to a 'separate but equal' framework that was rejected long ago in Canadian law In the decision under appeal, the Federal Court confused the principles applicable to statutory human rights with those which apply under section 15 of the Charter. 69. For instance, by concluding that, based on Supreme Court decisions regarding section 15(1) of the Charter, "the mandatory retirement rule should be seen as serving an ameliorative purpose to provide for beneficial agebased equal distribution of benefits among ACPA's members, as opposed to serving to perpetuate stereotypes and prejudice," 56 the Federal Court appears to have approached the matter under the framework established in R v Kapp While the CHRA deals with "special programs" in section 16, that differs significantly from section 15(2) of the Charter in that the analysis of a complaint does not begin with the question of whether a special program has been established. In other words, "ameliorative programs" are not a part of the CHRA and have no place in the test for establishing a prima facie case of discrimination, as it was set out in Ontario Human Rights Commission v Simpsons-Sears Caring Society FC, supra at note 33, at para 295; see also Brooks v Canada Safeway Ltd, [1989) 1 SCR FC Decision, supra at note 1, at para R v Kapp, 2008 sec Ontario Human Rights Commission v Simpsons-Sears, (1985) 2 SCR 536 ("O'Mal/ey''); see also Moore, supra at note 40, at para 33 17

21 71. As the Federal Court held in Canada (Human Rights Commission) v Canada (Minister of National Revenue), 59 the Supreme Court of Canada never intended to incorporate the principles developed under section 15(1) of the Charter to limit redress under human rights statutes. 60 While Caring Society FC considered Charter cases as well as statutory human rights ones, there is an important distinction between the consideration of Charter decisions for guidance on a particular issue and the application of a Charter framework to analysis of statutory human rights. Caring Society FC only referenced Charter decisions in this first manner, but in the decision under appeal the Federal Court appears to have done the latter. 72. In this case, not only did the Federal Court err by conflating Charter concepts with statutory human rights, but the Charter concepts that it imported are outdated. 73. In particular, the Supreme Court of Canada revisited the use of comparator groups in With/er v Canada (Attorney Genera/), 61 in light of the difficulties that had evolved since their introduction. Notably, the Supreme Court warned that "[c]are must be taken to avoid converting the inquiry into substantive equality into a formalistic and arbitrary search for the 'proper' comparator group. At the end of the day there is only one question: Does the challenged law violate the norm of substantive equality in s. 15( 1) of the Charter?" In With/er, the Supreme Court returned to its earlier analysis in Law Society of British Columbia v Andrews, 63 where it warned that comparisons must be approached with caution and rejected a formalistic "treat likes alike" approach 59 Canada (Human Rights Commission) v Canada (Minister of National Revenue), 2003 FC 1280 rwignalf') 0 Wignall, supra at note 59, at para With/er v Canada (Attorney General), 2011 SCC 12 ("With/er") 62 With/er, supra at note 61, at para 2 63 Andrews, supra at note 53 18

22 to equality under section 15(1 ), contrasting substantive equality with formal equality Similarly, in the decision under appeal, the Federal Court made repeated reference to its conclusion that the mandatory retirement rule does not perpetuate stereotypes and prejudice. 65 However, in Wignall the Federal Court explicitly rejected the argument that discrimination under the CHRA requires the perpetuation of stereotypes and. prejudice. 66 Further, even under the Charter, this concept of perpetuating stereotypes and prejudice continues to be refined by the Supreme Court In the end, the effect of the Federal Court's use of a comparator group here to establish hardship is to permit a defendant to answer allegations of discrimination with the mere suggestion of different discrimination. 77. While such a defence could potentially show undue hardship if it were supported by a proper evidentiary record, the Federal Court erred by effectively circumventing the requirement to establish a prima facie case of discrimination in the decision under appeal. In essence, the pilots - who did establish a prima facie case of discrimination - were put in the position of trying to defend themselves against new allegations discrimination without any inquiry into whether that new discrimination is established or whether that alleged discrimination fell within the scope of undue hardship pursuant to section 15(2) of the CHRA. 78. Further, the Federal Court's consideration of ACPA's hardship strongly implied potential discrimination against the comparator group of younger pilots, even though there was no inquiry into whether that discrimination was established, nor any consideration as to how to balance the competing rights at issue. If this comparator group analysis of hardship is permitted, it risks forcing the 64 With/er, supra at note 61, at paras 42 and See, for example, FC Decision, supra at note 1, at paras 19, 207 to 208, and Wignall, supra at note 61, at para See Quebec (Attorney General) v A, 2013 SCC 5 per Abella J (dissenting but not on this point) 19

23 Commission and the Tribunal to condone discrimination. Rather than protecting and promoting human rights, as is the Commission's current mandate under the CHRA, the Commission and the Tribunal would be required to choose between two discriminatory options. 79. Although the Federal Court found it significant that ACPA membership had voted to keep the mandatory retirement provision, 68 the Supreme Court rejected the idea that majority support from union membership amounts to a defence against prima facie discriminatory conduct in Dickason v University of Alberta: 69 [T]he prohibition against waiver of human rights prov1s1ons arises not only from a concern about inequality in bargaining power, but also because the rights guaranteed by human rights codes are seen as inherent to the dignity of every individual within our society. As a matter of public policy, such rights are not the common currency of contracts, but values which, by their very nature, cannot be bartered. For example, if employees, through their union, voted to sign a collective agreement with their employer whereby they agreed that female employees would be laid off first in case of an economic slowdown, that contract would be invalid. Even if a female employee sincerely believed that it made economic sense that male employees have greater job security, because in her view they are the primary bread-winners in most families, courts would not condone a contract which, on its face, defined and devalued the position of an individual on the sole basis of her gender. Constitutionally entrenched rights cannot be changed by a simple vote of Parliament. Human rights legislation is analogous in many respects to constitutional law. [... ]. Once extended, rights provided by provincial legislation cannot easiiy be withdrawn or circumscribed; that is surely what is implied by the statement that "short of [the] legislature speaking to the contrary in express and unequivocal language... it is intended that the Code supersede all other laws when conflict arises" (Insurance Corp. of British Columbia v. Heerspink, supra, at p. 158). It is equally unacceptable that. by a simple majority vote, 68 See FC Decision, supra at note 1, at paras 279 to Dickason v University of Alberta, (1992] 2 SCR 1103 ("Dickason") 20

24 a group of private citizens would be permitted to waive fundamental rights, barring truly exceptional circumstances. Accordingly, in my view, while the existence of a collective agreement whereby employees agree to limit their own rights may exceptionally be a factor in considering the justifiability of an employer's discriminatory policy, any such agreement must be scrutinized to ensure that it does not discriminate unfairly against a minority of the union membership, and that it was freely negotiated. The particular context of the bargain, including relevant legislation in place at the time of its conclusion, may greatly mitigate its evidentiary weight Finally, the Federal Court's decision about ACPA's hardship has the effect of frustrating Parliament's will. Parliament repealed section 15(1 )(c) of the CHRA, but the effect of the Federal Court's decision is that unions can generally establish a BFOR regarding a mandatory retirement provision if the collective agreement links increases in salary and benefits to seniority, as it did here. 81. For these reasons, the Commission submits that this Court should allow the appeal with respect to the issue of ACPA's hardship. The Federal Court failed to give deference to the Tribunal's expertise in the interpretation and application of the CHRA defences, including the BFOR defence in section 15(1 )(a). The Federal Court's unnecessary modification of the BFOR test from Meiorin should be overturned and the Tribunal's findings on ACPA's evidence of hardship should be restored. (v) A complainant is not required to show "substantive discrimination" 82. The Commission submits that the Federal Court erred in law by suggesting that a party must establish that there has been "substantive discrimination" as an essential element of proving a discriminatory practice under the CHRA. Effectively, the Court imported principles of analysis applicable to section 15 of the Charter which should not form part of the analysis of a potential breach of the CHRA. 70 Dickason, supra at note 69, at paras 116 to 118 (emphasis added) 21

25 83. As has been explained above, the Federal Court erred by importing Charter principles that have no role - or at least are not a requisite element - in statutory human rights. The most problematic of these errors by far is the creation of a requirement that complainants show "substantive discrimination" as part of a discriminatory practice under the CHRA. 84. The Federal Court clarified that: The issue of a beneficial rule would seem to arise when determining whether prima facie discrimination has been proven, because it relates to the substantive nature of the deviation in treatment of the complainants as meritorious or not. One should not have to justify meritorious deviations. Only non-meritorious deviations in treatment of complainants require justification by respondents relating to the burden of accommodating the discrimination This passage illustrates the fundamental misunderstanding that underpins the Federal Court's analysis: there is no obligation to accommodate discrimination. Rather, the duty to accommodate requires parties to accommodate the needs and personal characteristics of an individual. Discrimination arises when such needs are not accommodated, unless accommodation of the individual's needs would create undue hardship. 86. Further, failure to accommodate is not, on its own, a discriminatory practice under the CHRA, and the CHRA does not create a freestanding right to accommodation. Rather, the CHRA protects individuals who can show a need for accommodation that is linked to a prohibited ground of discrimination. In other words, before the duty to accommodate, or even a BFOR defence, are triggered, a complainant must show that he or she is being treated differently or is being adversely impacted by treatment which is neutral on its face, and that this treatment or impact is linked to a prohibited ground of discrimination. 87. This is all that a complainant must establish in order to make out a prima facie case of discrimination. As the Supreme Court affirmed in Moore: 71 FC Decision, supra at note 1, at para 342, emphasis in original 22

26 As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur A complainant has no obligation to disprove or rebut a presumption undue hardship to others as part of the prima facie case of discrimination. Neither must a complainant show an intent to discriminate as part of the prima facie case of discrimination. 73 However, the introduction of a requirement to show "substantive discrimination", as it was explained by the Federal Court, could have the effect of introducing these elements into the prima facie case which a complainant must establish. 89. The Federal Court's decision represents a significant change to the elements that a complainant must establish as part of a prima facie case of discrimination, and it greatly increases the burden on human rights complainants. 90. The Federal Court's reasoning is explained as follows: The methodology employed [in the Tribunal's finding of prima facie discrimination] is formalistic in defining discrimination. By that I mean that it rests on the notion that any departure from identical treatment of individuals on the basis of an enumerated or analogous ground violates equality and therefore demands justification However, the concept of "substantive discrimination" adopted by the Federal Court appears to be derived from Charter decisions which, as was discussed 72 Moore, supra at note 40 at para See Meiorin, supra at note 4, at para FC Decision, supra at note 1, at para

27 above, require perpetuation of stereotyping and disadvantage - statutory human rights. unlike 92. Further, the effect of the Federal Court's ruling that a complainant must establish substantive discrimination risks a return to the formalistic approach to equality that has long since been rejected. Human rights must be interpreted broadly in order to give full effect to the fundamental rights at issue, 75 but the Federal Court's addition of a substantive discrimination element significantly narrows the protection afforded under the CHRA. As the Supreme Court emphasized in Moore, analysis of a human rights complaint necessarily focuses on the individual complainant and the barriers he or she encounters The Federal Court suggested that the Tribunal's approach to the prima facie case of discrimination in this matter risks "cheapening" talk of human rights: "[l]ike crying wolf too often, the term [discrimination] will lose its punch and legitimacy as an effective deterrent to discriminatory conduct." 77 However, this case is the clearest example of direct discrimination: the complainants were refused continued employment solely because of their age. To the extent that the Federal Court's decision presumes that this mandatory retirement regime is not prima facie discriminatory, it is fundamentally flawed and this Court should overturn it. C) Costs 94. Finally, the Commission notes that it does not seek costs, given that it is acting in its public interest mandate, and asks that costs not be ordered against it. 75 See, for example, Meiorin, supra at note 4, at para Moore, supra at note 40, at paras 30 to FC Decision, supra at note 1, at para

28 PART IV-ORDER SOUGHT. 95. The Commission asks that this Court allow the appeal in part: a. This Court should dismiss the appeal with respect to the normal age of retirement; b. The appeal should be allowed with respect to the remaining issues. c. The whole without costs in respect of the Commission. Dated at Ottawa this 8 1 h day of August, Da el Poulin/Erin Collins C unsel Canadian Human Rights Commission 344 Slater Street, 8 1 h Floor Ottawa, ON K1A 1 E1 Tel: (613) Fax: (613) daniel.poulin@chrc-ccdp.gc.ca erin.collins@chrc-ccdp.gc.ca 25

29 PART V - LIST OF AUTHORITIES Legislation Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 Canadian Human Rights Act, RSC 1985 c H-6 Case law Adamson et al v Air Canada, 2014 FC 83 Adamson v Air Canada, 2011 CHRT 11 Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 Air Canada Pilots Association v Kelly, 2011 FC 120 Air Canada Pilots Association v Kelly, 2012 FCA 209 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 Brooks v Canada Safeway Ltd, [1989] 1 SCR 1219 Brossard (Town) v Quebec (Commission des droits de la personne), [1988] 2 SCR 279 Canada (Attorney General) v Canada (Human Rights Commission) et al, 2013 FCA 75 Canada (Attorney General) v Johnstone, 2014 FCA 110 Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 sec 53 26

30 Canada (Human Rights Commission) v Canada (Attorney General), 2012 FC 445 Canada (Human Rights Commission) v Canada (Minister of National Revenue), 2003 FC 1280 Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970 Chopra v Canada (Attorney General), 2007 FCA 268 Dickason v University of Alberta, [1992] 2 SCR 1103 Dunsmuir v New Brunswick, 2008 SCC 9 Honda Canada Inc v Keays, 2008 SCC 39 International Longshore & Warehouse Union (Marine Section), Local 400 v Oster, 2001 FCT 1115 Law Society of British Columbia v Andrews, [1989] 1 SCR 143 Moore v British Columbia (Education), 2012 SCC 61 Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 Ontario Human Rights Commission v Simpsons-Sears, [1985] 2 SCR 536 Oster v International Longshoremen's & Warehousemen's Union (Marine Section), Local 400, TD 4100 (CHRT) Quebec (Attorney General) v A, 2013 SCC 5 R v Kapp, 2008 sec 41 Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 Tahmourpour v Canada (Attorney General), 2010 FCA 192 Telfer v Canada Revenue Agency, 2009 FCA 23 Vilven v Air Canada, 2009 FC

31 With/er v Canada (Attorney General), 2011 SCC 12 Zurich Insurance Co v Ontario (Human Rights Commission), [1992] 2 SCR

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