CBRM loses human rights application

Staff ~ The Cape Breton Post
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SYDNEY —  The Nova Scotia Human Rights Commission can hold a board of inquiry into the age discrimination complaints of four former Cape Breton Regional Municipality employees.

Nova Scotia Supreme Court Justice Cindy Bourgeois rejected the CBRM's application for a judicial review challenging the board of inquiry. In a decision released Tuesday, she ruled the human rights commission acted within the terms of the province's human rights act, and in a reasonable manner, when it decided to refer the complaints of the former employees, who were forced to retire at age 65, directly to a board of inquiry.

Bourgeois also ruled that she can't conclude the CBRM was denied procedural fairness and that she would not quash the decision as an abuse of process.

The ruling also lifts a stay of the human rights commission board of inquiry that had been granted by the Supreme Court.

A group of former employees listed in the Supreme Court ruling as Doug Foster, John Hynes, Judy Wadden and Mary Coffin had complained to the human rights commission that a policy requiring them to retire at age 65 was discriminatory under the terms of the province's human rights act.

Bourgeois noted the case began with six former employees. By the time of the ruling two were back at work with the CBRM.

Nova Scotia's Human Rights Act forbids discrimination by employers on the basis of age, although it allows exceptions where an employee's continued employment prevents the operations of a bona fide pension plan or a group or employee insurance plan.

Lawyers for the CBRM had argued it was an abuse of process by the human rights commission to try to re-litigate an issue that had already been fully determined by a board of inquiry in 2009 dealing with a former CBRM employee. The 2009 inquiry had found that mandatory retirement at age 65 was within the age discrimination exception, meeting the pension plan-related exception. The CBRM had also argued it was unfair of the commission to appoint a board of inquiry without first notifying the CBRM, providing it with copies of the complaints and following its own policy that all parties be given a chance to comment in writing on whether a board of inquiry should be called.

Lawyer Blair Mitchell, who represents Foster, the former planning director of the CBRM, said Tuesday the ruling means the human rights commission can immediately go ahead with the board of inquiry into the complaints of the former employees.

"It will allow the inquiry to go ahead and to be dealt with by the expert tribunal, which is the human rights commission," Mitchell said.

"We will be pressing on that immediately."

Mitchell said his client's goal all along has been to see the discrimination issue raised by his complaint resolved.

"It's a case where the municipality is alone, or virtually alone across the province in terms of its policy," he said.

Lawyer Eric Durnford, who represents the CBRM, did not reply to a Cape Breton Post request for an interview Tuesday.

Gordon MacDougall, a human resources department manager for the CBRM,  said Tuesday he hadn't had an opportunity to review the Supreme Court ruling and wouldn't be able to offer any comments on behalf of the CBRM.

Ritchie Wheeler, the acting CEO and director of the human rights commission, said he was still reading the Supreme Court ruling and would not have any comment Tuesday.

Foster, who was required to retire when he turned 65 on June 4, 2012,  said Tuesday he is eager to go ahead with the human rights board of inquiry into his complaint now that the request for a judicial review has been dismissed by the Supreme Court.

"It's my opinion the CBRM does not have the right to force retirement solely on the basis of age, which is what they did," he said.

Foster, who plans to return to his job with the CBRM, said he hopes it will not appeal the Supreme Court of Nova Scotia ruling, and that the human rights board of inquiry will be held in the near future.

Mitchell called the Supreme Court ruling a new and important argument in the field of administrative law, saying the Supreme Court justice has decided a board of inquiry appointed under the human rights act can make decisions not only about discrimination but also about whether the way a complaint is dealt with is an abuse of process before the board.

The lawyer said the ruling means the human rights commission has the power to refer a complaint directly to a board of inquiry without requiring a prior investigation, giving it an important tool when it comes to dealing with complaints.

The ruling means the humans rights commission can proceed with a complaint of discrimination even if there has been an argument that the complaint process is being misused, he said.

The Canadian Union of Public Employees and a number of its locals representing employees of the CBRM had supported the application for a judicial review.

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