View cases - Stewart McKelvey

[151] In contrast, the French version of the provision refers to “la règle de l’âge de la retraite envigueur” (emphasis added). “Règle” is defined in Le Nouveau Petit Robert : dictionnairealphabétique et analogique de la langue française, Josette Rey-Debove & Alain Rey, ed., Paris:Dictionnaires Le Robert, 1993, as “Ce qui est imposé ou adopté comme ligne directrice de conduite→ coutume, habitude, usage. Formule qui indique ce qui doit être fait dans un cas déterminé →convention, institution.” “Règle” is also defined as “loi, norme, précepte, prescription, principe”.[152] Thus it appears that the use of the word “règle” in the French version of paragraph 15(1)(c)does not necessarily refer to a formal, rigid, binding rule as the applicants suggest. As the dictionarydefinition cited above indicates, while a “règle” may amount to a binding law, it may also refer to anorm, usage, custom or standard. On the other hand, the word “normal” may relate to a standard, or aregular, usual or typical practice, but does not, in its ordinary sense, contemplate a binding rule.[153] In order to establish the defence contemplated by paragraph 15(1)(c) of the Act, the sharedmeaning of the English and French versions of the provision requires that the age of retirement inissue must be normal, customary or standard within the relevant industry sector. The existence of abinding rule mandating retirement at a particular age is not required.2009 FC 367 (CanLII)[154] In light of the foregoing analysis, to the extent that the Tribunal’s reasons may be read asrequiring that there be a binding rule in place mandating retirement at a fixed age in order for there tobe a “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Canadian HumanRights Act, the Tribunal’s decision was unreasonable.[155] I note that my interpretation of paragraph 15(1)(c) is consistent with the jurisprudence: see,for example, McAllister v. Maritime Employers Association (1999), 172 F.T.R. 161 (F.C.T.D.); Priorv. Canadian National Railway Company (1983), 4 C.H.R.R. D/268 (C.H.R.T.); Campbell andStevenson, both previously cited.[156] In McAllister, this Court relied on dictionary definitions to interpret the phrase “normal age ofretirement” as it is used in paragraph 15(1)(c) to mean “‘standard, a type; what is expected orregarded as normal; customary behaviour, appearance’ (in this case: to guide and regulate theretirement age in the industry)”: at paragraph 69.[157] In coming to the conclusion that a binding rule is not required for the defence underparagraph 15(1)(c) of the Act to be available to an employer, I have given careful consideration to theapplicants’ argument that the narrower French version of the legislation is to be preferred, given thatthe provision creates an exception to the rights protected by the Canadian Human Rights Act, and assuch should be narrowly construed.[158] While it is true that defences under the Act are to be narrowly construed, the words of the Actmust still be given their ordinary meaning, and cannot be interpreted in a manner that is inconsistentwith the wording of the legislation: see Potash Corporation, at paragraph 19. Reading the Englishversion of paragraph 15(1)(c) as requiring the existence of a binding rule before a “normal age ofretirement” can be established, would, in my view, do violence to the ordinary meaning of thelanguage contained in the paragraph. Moreover, it would be contrary to the intent of Parliament inenacting this provision.[159] In this regard, I refer to the comments of Minister of Justice Ron Basford, and AssistantDeputy Minister Strayer, who explained that the intent of the provision was to leave the question of amandatory retirement age in the private sector to be negotiated between employers and employees.[160] Minister Basford testified as follows [in Campbell, at paragraph 5482]:… I would like to point out that the determination of retirement age in the federal public sector is a matter oflegislation or regulatory policy. In the private sector this is a matter which has traditionally been left to bedetermined between employers and employees.