The BC Human Rights Tribunal ("Tribunal")
recently considered the application of s. 13(3)(b) in two age
discrimination complaints. The Tribunal dismissed both complaints
on preliminary applications.
In Johnston obo others v. City of Vancouver (No 2),
2015 BCHRT 90 [Johnston] the complainant alleged age
discrimination because the employer did not provide long term
disability benefits to employees once they reached age 65. The
complainant in Yaremy v City of Vancouver (Fire and Rescue
Services) and Vancouver Fire Fighters' Union, Local 18,
2015 BCHRT 98 [Yaremy] argued that the mandatory
retirement age of 60 for firefighters was discriminatory.
The City of Vancouver was the respondent in both cases. In
Johnston, the City's position was that exclusion from
long term disability benefits upon employees attaining age 65 was
related to the operation of a bone fide group or employee
insurance plan. In Yaremy, the City maintained that the
mandatory retirement age for firefighters was related to the
operation of a bona fide retirement, superannuation or
pension plan. The City argued in both cases that the exception to a
finding of discrimination provided in s. 13(3)(b) of the
Code applied and the complaints should be dismissed.
In both cases the Tribunal considered whether it should apply
the legal framework set out in Zurich Insurance Co. v. Ontario
(Human Rights Commission),  2 S.C.R. 321
[Zurich] or New Brunswick (Human Rights Commission) v.
Potash Corporation of Saskatchewan Inc., 2008 SCC 45
[Potash]. The notable difference between the two decisions
is that Zurich requires that for the impugned plan to be
bona fide, it must also be reasonable. The City argued in
both cases that the Tribunal should follow the Supreme Court of
Canada's decision in Potash, which determined that in
an analysis of language like that set out in s. 13(3)(b) of the
Code, a reasonableness requirement need not be
In Johnston the Tribunal noted that past decisions of
the Tribunal considering s. 13(3)(b) had applied the test from
Zurich. The Tribunal concluded in Johnston that
Potash set out the appropriate approach in respect of s.
13(3)(b) of the Code and that the reasonableness of the
plan need not be proven . After examining the evidence and applying
the test in Potash, the Tribunal determined that the
disabilityplan was legitimate, adopted in good faith and not for
the purpose of defeating protected rights. The plan was therefore
bona fide and the complaint was dismissed pursuant to s.
27(1)(b) on the basis that the acts alleged in the complaint did
not contravene the Code.
In Yaremy the collective agreement required all
firefighters to retire at age 60. The pension plan indicated a
"normal" retirement age for firefighters at that age but
did not mandate it. The City argued that mandatory retirement found
in the collective agreement, together with various pension rules
and agreements, together operated as a bona fide
retirement, superannuation or pension plan within the meaning of
Noting the Tribunal's determination in Johnston
that Potash is the governing case regarding interpretation
of s. 13(3)(b), the Tribunal concluded that the collective
agreement and other pension and supporting documents worked
together to make up a bona fide retirement, pension or
superannuation plan adopted in good faith and not for the purpose
of defeating protected rights. The exception in s. 13(3)(b) applied
and the Tribunal concluded there was no reasonable prospect that
the age discrimination complaint would succeed.
These cases are important because they establish that a
respondent relying on s. 13 (3)(b) of the Code is not
required to prove the impugned plan or scheme is
"reasonable" in addition to being bona fide. The
decision in Yaremy also confirms that the plan or scheme
in question must be considered "broadly and in context",
having regard to evidence of an inter-connected set of rules, which
may be expressed in more than one document.
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