Rein v Alberta (Human Rights Commission), 2016 ABQB 386
Pentelchuk J.
Sandeep Dhir, QC and Lindsey Miller for the applicant, Gloria Rein
Janice Ashcroft, QC for the respondent, Alberta Human Rights Commission
Simon Renouf, QC for the respondents, AUPE and Unifor Local 880
July 18, 2016
The applicant, Gloria Rein, sought judicial review of the decision of the Chief Commissioner of the Alberta Human Rights Commission to dismiss her human rights complaint regarding her employer’s group health benefits and life insurance plan, which ended coverage when an employee reached age 65. The complaint alleged that the plan’s age-based eligibility condition was prohibited discrimination.
Summary
The Chief Commissioner dismissed the complaint for lack of merit at the threshold stage pursuant to her “gatekeeping” function under the legislation. This function gives discretion to dismiss a complaint as long as there is no reasonable basis in the evidence for proceeding to the next stage (Mis v Alberta Human Rights Commission, 2001 ABCA 212).
The Chief Commissioner found that the plan would likely fit into a statutory exemption for bona fide insurance plans. Section 7(2) of the Alberta Human Rights Act exempts from the prohibition against age and marital status discrimination “the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan.”
The legal test for whether a plan is bona fide was considered by the Supreme Court of Canada in the Potash case (New Brunswick (Human Rights Commission) v Potash Corporation of Saskatchewan Inc., 2008 SCC 45 at para. 41). A plan is bona fide if it is “a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.” On the other hand, “sham” plans that arbitrarily deprive members of their rights are not bona fide (2016 ABQB 386 at para. 46).
The Chief Commissioner’s written decision referred to Potash and the evidence, and concluded that the plan was bona fide without providing additional reasoning. The decision simply stated (2016 ABQB 386 at para. 30):
“The information supports that the plan was adopted in good faith and that the purpose is not to defeat protected rights.”
On judicial review, the applicant took issue with the brevity of the decision. She also argued that there was insufficient evidence to support the bona fides of the plan. The court considered the information before the Chief Commissioner, which included the following (para. 39):
The Plan itself, which was supplied by a large and reputable insurer, and included a full range of benefits;
Information, including collective agreement provisions, regarding a health expense claim reimbursement which was available only to employees age 65 and older;
An email from the union president to the applicant explaining the rationale behind the age-related exemption; and
A legal opinion prepared for the union addressing the merits of age-based discrimination complaints or grievances based on the exclusion of employees over age 65 from coverage under the plan.
On that basis the reviewing judge held the Chief Commissioner’s decision was reasonable and dismissed the application again without additional reasoning. She simply stated (at para. 56), “In my view, it is certainly reasonable, based on this information, for the Chief Commissioner to conclude that the plan is bona fide and thus, the cessation of benefits upon an employee turning 65 years of age, is not discriminatory by virtue of s 7(2) of the AHR Act.”
Absent from the list above was any evidence supporting the necessity of the age restriction. The Chief Commissioner stated (2016 ABQB 386 at para. 28), “The proof of bona fides does not require actuarial calculations designed to show that the plan needs to have the allegedly discriminatory restrictions in order to be financially sound.”
The reviewing judge did not contradict this interpretation but upheld the Chief Commissioner’s decision.
Conclusion
The significance of this case is in what was not required to show that the plan was bona fide. Little evidence of bona fides was required at the threshold stage, and the complaint was dismissed by the Chief Commissioner with little reasoning given. Applying the more deferential reasonableness standard to the Chief Commissioner’s decision, the reviewing court did not seek to fill in the gaps in reasoning. As the court found that it was reasonable for the Chief Commissioner to find the plan was bona fide with the information before it, it left a relatively onerous evidentiary burden on the complainant to demonstrate that the plan structure was intended to defeat protected rights. The age-related eligibility condition on its own was insufficient to warrant further inquiry.
The reviewing judge also considered the minority decision from Potash (at para. 45) that said that age limits must be justified as “being reasonably required having regard to the operation and sustainability of the plan” but pointed out that the majority decision found no such requirement. This confirmed that no additional justification based on the “operation” of the plan would be required to substantiate the bona fides of an age limit.
This case, together with others such as Foster v Nova Scotia (Human Rights Board of Inquiry), 2015 NSCA 66, another unsuccessful complaint – in that case on a mandatory retirement clause in a pension plan – suggest that a lower threshold of evidence is required for a plan to be bona fide. Complainants must prepare additional evidence to suggest that the plan may be a sham, or face the risk that their complaint will be dismissed without further consideration.
Prepared by: Dante Manna, Stewart McKelvey