CBA – NEW BRUNSWICK

Constitutional, Human Rights & Equity Section

REPORT FROM THE CHAIR – Amy R. Gough Farnworth

June 23, 2006

Section Activity in New Brunswick

The Section organized two CLE’s in 2006:

1. Mandatory Retirement Issues

The first CLE was presented in conjunction with the NB MidWinter Meeting in February. This session was entitled: “Retiring the Concept of Mandatory Retirement” Approximately 25 participants were in attendance. The session examined the impact of Bill 62, An Act to Amend the Human Rights Act, which, among other changes, would have repealed section 3(6)(a) of the New Brunswick Human Rights Act; which permits an employer to terminate employment or refuse to employ because of the terms or conditions of any bona fide retirement or pension plan. The Bill would also have consolidated the BFOQ defences under the Act. Bill 62 ultimately died on the Order paper in December 2005 and has not been re-introduced. In the context of the then-current Bill 62, however, the Panel also discussed the case of Potash Corp. of Saskatchewan v. Scott [2005] N.B.J. No. 197. Scott was a miner in the Potash Corp. of Saskatchewan’s (PCS) operations near Sussex, NB. He complained to the Human Rights Commission that he shouldn’t have been forced to retire at age 65. PCS maintained that the mandatory retirement policy was a term of a bona fide pension plan and thus permissible under the Act. The Commission recommended a Board of Inquiry and the parties agreed to put to the Board a preliminary question of law on the appropriate interpretation of the 3(6)(a) Defence. The Board held that the Commission was correct in giving 3(6)(a) an interpretation consistent with the unified approach to bona fide qualification defences in human rights matters set forth by the Supreme Court in Meiorin and Grismer. On Judicial Review to the Court of Queen’s Bench, PCS, however, was successful in overturning the Board’s decision. Judge Russell stipulated that the less stringent test from the Supreme Court’s 1992 decision in Zurich should apply to bona fide pension plan defences. The Commission appealed the Court’s decision to the NB Court of Appeal. The matter was heard last Fall, however, the NBCA decision is still pending.

2. Employment Standards and Human Rights

The second CLE presented by the Section was entitled: “Hand in Glove – Employment Standards and Human Rights Obligations to Employees.” This session was an independent CLE and was very-well attended with approximately 45 participants from both the lawyer and lay-business community. The session was intended to highlight the distinction between the minimum standards established by the NB Employment Standards Act (ESA) leave provisions and the enhanced obligations required by human rights legislation and jurisprudence; most particularly the duty to accommodate. This session was intended to address a specific concern identified by the Human Rights Commission in the number of Respondents who attempted to defend Complaints by asserting compliance with the Employment Standards Act. The session was well-received with a great number of questions, particularly from direct Employers to clarify the inter-play between the ESA and the Human Rights Act.

Update: Significant Constitutional and Human Rights Decisions in New Brunswick

1. Workplace Health, Safety and Compensation Commission Appeals Tribunal Decision Number 20064227 (May 4, 2006) (unreported)

This case dealt with a claim of age discrimination, contrary to section 15 of the Charter, by the conversion of “wage replacement benefits” at age 65 to “pension replacement benefits” under the Workers’ Compensation Act. The Appeal Tribunal found there was no breach of section 15 and did not conduct a section 1 analysis. The Tribunal determined that the impugned section merely changed the source and nature of the benefits payable under the Act. The Tribunal concluded:

… While the time when this [change in classification of the benefit] occurs is at age 65, it does not in the view of the Appeals Tribunal have the effect of creating the stereotype found by the Court in Andrews, McKinley or Tetrault-Gadoury. It does not demean the appellant’s dignity by classifying him by reason of age as being no longer part of an active working population. The appellant’s ability to be part of an active working population was determined by the extent and nature of his work-related injuries. Rather, what the provision does along with subsection 38.22(14) is integrate the benefits under the Act with those afforded to all working Canadians. …

2. R. v. Maillet 2006 NBCA 22

This is a language rights case that examined the specific issue of remedies to address a denial of rights. Ms. Maillet claimed that she was denied services in French when arrested and tried on a charge of impaired driving. Ms. Maillet was able to speak English and did not request French services. It was determined, in the circumstances, that Ms. Maillet’s right to a fair trial was not violated and a stay of proceedings was not available.

3. Charlebois v. Saint John (City) 2005 SCC 74

Charlebois is another language rights case. Mr. Charlebois filed an Application, in French, against the City of Saint John. The City and the Attorney General of New Brunswick moved to strike the application. The City filed pleadings in English only. The A.G. filed its pleadings in French, but some of the cites were in English. Mr. Charlebois took issue with receiving pleadings in English on the basis that s. 22 of the Official Languages Act of New Brunswick required the City to adopt the language of choice of the Applicant. Both the Court of Queen’s Bench and the Court of Appeal held that s. 22 of the Official Languages Act did not apply to municipalities and cities. The Supreme Court of Canada agreed with the legislative interpretation of the lower Courts and dismissed the appeal.

4. Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice) et. al. 2005 SCC 44

This case took a constitutional analysis to the issue of judicial remuneration in the context of concerns for judicial independence. The matter arose when the independent Commission in NB mandated to address judicial remuneration recommended an increase in judicial salaries; but the Government rejected the Commission’s recommendation and refused to increase the judges’ salaries. On judicial review, the reviewing judge found the Government’s reasons for rejecting the Commission’s recommendation to be rational. The NBCA upheld the decision on the salary determination. The SCC dismissed the appeal; thereby endorsing the Government’s decision. Other provincial judges’ associations joined in the case at the SCC and their provincial processes for judicial salary-setting were examined as well.

5. R. v. Marshall; R. v. Bernard 2005 SCC 43

This was a further case on Treaty Rights; particularly in relation to whether the Mi’kmaq in Nova Scotia and New Brunswick have a treaty right to log on Crown lands for commercial purposes. Two matters were combined: the Marshall facts involved charges against 35 Mi’kmaq persons charged with cutting timber on Crown lands in Nova Scotia without authorization and in Bernard an individual Mi’kmaq was charged with unlawful possession of logs being hauled from the cutting site to a local saw mill. In both cases, the defence to the charges was that Treaty Rights included the right to log on Crown lands for commercial purposes. The SCC allowed the Crown appeals and the convictions were restored. The SCC held that the treaties of 1760-61 did not confer on modern Mi’kmaq a right to log contrary to provincial regulation. It was further determined that the “truckhouse clause” under the applicable treaties did not confer commercial rights to trade in timber.

National Constitutional & Human Rights Law Section Meeting – Ottawa (June 3, 2006)

I attended at the National Section Meeting on behalf of New Brunswick. The National Executive and Section Chairs from British Columbia, Manitoba, Ontario and Newfoundland were also in attendance. Each province reported on Section activities and initiatives. Written provincial section reports are available to anyone who is interested.

The broader Agenda for the meeting included discussion of the CLE programs for the CLC in St. John’s. Two programs will be presented by the Constitutional and Human Rights Section – one on Religion and the State and the other will acknowledge the 20 year anniversary of the Charter with a specific examination of section 15 jurisprudence.

Gregory Tardi, Senior Parliamentary Counsel to the House of Commons, reported on the upcoming Law and Parliament Conference to take place November 1-4, 2006 in Ottawa. The theme of this conference is “Accountability as a Pillar of Democratic Governing.” The speakers list of over 50 participants includes Justice Minister Vic Toews, Justice John Gomery, Michael Ignatieff, MP and many international academics and judiciary from as far away as Israel, Australia, Hungary and the U.S.A.

The National Section participated in CBA’s response to the federal Accountability Act (Bill C-2) with review and commentary. These comments formed part of the formal CBA presentation to Parliament on this legislation.