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A-536-80
Pacific Pilotage Authority (Applicant) v.
Kenneth Arnison and the Canadian Human Rights Commission (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D. J.—Montreal, October 24; Ottawa, October 31, 1980.
Judicial review — Application to review and set aside a decision of Human Rights Tribunal that removal of respond ent Arnison upon reaching age 50 from an employment eligi bility list was discriminatory practice — Section 4(1)(a) of General Pilotage Regulations specifies minimum and max imum ages for licence applicants — Whether Tribunal erred in law in finding that s. 4(1)(a) was ultra vires on the ground that a maximum age qualification could not be considered a mini mum qualification respecting age under s. 42(a) of the Pilotage Act — Application allowed — "Minimum" qualifies the word "qualifications" and not the word "age", and indicates rela tionship of power of Governor in Council to prescribe qualifi cations to that of Pilotage Authority — Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 3, 7, 10, 14(b) — General Pilotage Regulations, C.R.C. 1978, Vol. XIII, c. 1263, s. 4(1)(a) — Pilotage Act, S.C. 1970-71-72, c. 52, ss. 14(1)(f),(g), 42(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
William O'M. Forbes for applicant.
Allan E. Black for respondent Kenneth
Arnison.
Russell G. Turiansz for respondent Canadian
Human Rights Commission.
SOLICITORS:
Owen, Bird, Vancouver, for applicant. McTaggart, Ellis & Company, Vancouver, for respondent Kenneth Arnison.
Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission.
The following are the reasons for judgment rendered in English by
LE DAIN J.: This is a section 28 application to review and set aside a decision of a Human Rights
Tribunal appointed under section 39 of the Canadian Human Rights Act, S.C. 1976-77, c. 33, to inquire into a complaint of discriminatory prac tice. In its decision dated July 28, 1980 the Tri bunal found that the removal of the respondent Captain Arnison, upon his attaining the age of 50, from the eligibility list maintained by the applicant for the employment of pilots was a discriminatory practice within the meaning of the Act and ordered that he be restored to his former position on the list.
It is conceded that the action taken by Pacific Pilotage Authority amounted to a refusal to employ within the meaning of section 7 of the Act or the application of a policy in relation to employ ment within the meaning of section 10. These provisions read as follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer ral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
Section 3 of the Act defines prohibited grounds of discrimination as follows:
3. For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, conviction for which a pardon has been granted and, in matters related to employ ment, physical handicap, are prohibited grounds of discrimina tion.
The position adopted by Pacific Pilotage Au thority is that it was required by law to take the action it did, specifically by section 4(1)(a) of the General Pilotage Regulations, C.R.0 1978, Vol. XIII, c. 1263, which reads as follows:
4. (1) Every applicant for a licence shall be
(a) not less than 23 years of age and not more than 50 years of age; .. .
The Authority relies on section 14(b) of the Canadian Human Rights Act, which reads:
14. It is not a discriminatory practice if
(b) employment of an individual is refused or terminated because that individual
(i) has not reached the minimum age, or
(ii) has reached the maximum age
that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;
The Tribunal held that section 4(1)(a) of the General Pilotage Regulations was ultra vires in so far as it purported to fix a maximum, as well as a minimum, age as a qualification that must be possessed by an applicant for a licence. The Au thority did not, in argument before this Court, challenge the jurisdiction of the Tribunal to rule on the validity of the General Pilotage Regula tions, but it contended that its conclusion on the question of validity was wrong in law.
Section 4(1)(a) of the General Pilotage Regula tions was adopted by the Governor in Council pursuant to section 42(a) of the Pilotage Act, S.C. 1970-71-72, c. 52, which reads as follows:
42. The Governor in Council may make regulations
(a) prescribing for any region or part thereof the minimum qualifications respecting the navigational certificates, experi ence at sea, age and health of an applicant that an applicant shall meet before he is issued a licence or pilotage certificate;
The question of validity turns on the sense in which the word "minimum" is used in section 42(a). The Tribunal took the view that a max imum age could not be a minimum qualification respecting age within the meaning of the section. In my opinion it was wrong. The word "minimum" qualifies the word "qualifications" and not the word "age", and the sense in which the expression "minimum qualifications" is used in section 42(a) is to be seen in section 14(1) (f) of the Act where the expression is first used to distinguish the qualifications prescribed by the Governor in Coun cil from those which may be prescribed by a
Pilotage Authority. Section 14(1) (f) reads as follows:
14. (1) An Authority may, with the approval of the Gover nor in Council, make regulations necessary for the attainment of its objects, including, without restricting the generality of the foregoing regulations
(/) prescribing the qualifications that a holder of any class of licence or any class of pilotage certificate shall meet, includ ing the degree of local knowledge, skill, experience and proficiency in one or both of the official languages of Canada required in addition to the minimum qualifications pre scribed by the Governor in Council under section 42;
The words "in addition to the minimum qualifi cations prescribed by the Governor in Council under section 42" indicate, in my opinion, that the word "minimum" is used in the sense of basic, to indicate the relationship of the power of the Gov ernor in Council to prescribe qualifications to that of a Pilotage Authority. It is this distinction, drawn in section 14(1)(f), that indicates the reason for the use of the word "minimum" in section 42(a). Otherwise, it would have been sufficient in section 42(a) to use the word "qualifications" without a modifier, since in the absence of a power to prescribe additional or stricter qualifications the word "minimum" would add nothing to what is ordinarily conveyed by the word "qualifications."
Counsel for the respondents argued that section 14(1)(f) could not be invoked as an aid to the interpretation of the word "minimum" in section 42(a) because it speaks of the qualifications of a "holder" of a licence, whereas section 42(a) speaks of the qualifications of an "applicant" for a licence. I find this contention to be without merit because, whether or not there is a meaningful or practical distinction between the qualifications required of an applicant and those required of a holder, what is significant about the language of section 14(1)(f) is that by the words "in addition to the minimum qualifications prescribed by the Governor in Council under section 42" Parliament has indicated the sense in which the word "mini- mum" is used in section 42(a). In any event, the significance to be attached to the use of the word "holder" in section 14(1) (f) is far from clear in view of the terms of section 14(1)(g) which speak of the qualifications prescribed under paragraph (f) as being applicable to both a holder and an applicant. It reads:
14. (1) An Authority may, with the approval of the Gover nor in Council, make regulations necessary for the attainment of its objects, including, without restricting the generality of the foregoing regulations
(g) prescribing the manner for determining whether
(i) a person who applies for a licence or pilotage certifi cate, or
(ii) a licensed pilot or holder of a pilotage certificate
meets the qualifications prescribed under paragraph (f) for the class of licence or pilotage certificate that he holds or for the issue of which he has applied, as the case may be.
Given the meaning to be attributed to the word "minimum" in section 42(a), a maximum age beyond which an applicant may not be granted a licence is a qualification respecting age within the meaning of the provision. Such a qualification, which involves the consideration of what is an appropriate age to enter the field of pilotage, is not in my opinion incompatible or in conflict with the provision of a mandatory retirement age of 65 pursuant to section 15(7) of the Act.
In the result, I am of the opinion that the removal of Captain Arnison's name from the eligi bility list for the employment of pilots could not be a discriminatory practice within the meaning of the Canadian Human Rights Act because it amounted to a refusal to employ for a reason validly imposed by law. It was not argued before us whether, as a general principle, the provisions of the Canadian Human Rights Act could affect the validity or application of statutory regulations that have been otherwise validly adopted, but without expressing an opinion on that question I am satis fied that the refusal of employment in the present case is sufficiently covered by the terms of section 14(b) of the Act, which was quoted earlier in these reasons.
In view of this conclusion it is unnecessary to express an opinion on the applicant's second ground of attack: that the Tribunal erred in law in concluding that the maximum age in section 4(1)(a) of the General Pilotage Regulations was not based on a bona fide occupational requirement within the meaning of section 14(a) of the Canadian Human Rights Act.
I would allow the application, set aside the decision of the Tribunal and refer the matter back for disposition upon the basis that the removal of
Captain Arnison from the eligibility list main tained by the applicant was not a discriminatory practice within the meaning of the Canadian Human Rights Act.
In view of the fact that it was at the request of the applicant, for reasons of urgency, that the hearing of the application was held in Montreal rather than Vancouver, I would order the appli cant to pay the reasonable travelling expenses incurred by counsel for the respondent Captain Arnison in attending the hearing, but I would make no other order as to costs.
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PRATTE J.: I agree.
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HYDE D.J.: I agree.
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