New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.

Abella J. — In 2004, Melrose Scott filed a complaint with the New Brunswick Human Rights Commission because he was asked to retire at the age of 65 pursuant to the mandatory retirement policy contained in his employer’s pension plan. He alleged that this constituted age discrimination. After attempts at conciliation failed, the complaint was referred to a Board of Inquiry for adjudication.

The age discrimination provisions in New Brunswick’s Human Rights Code, R.S.N.B. 1973, c. H-11, are expressly declared not to apply to a decision to terminate an employee if the decision was taken pursuant to a bona fide retirement or pension plan. The dispute in this case is over what test is triggered by the use of the phrase “bona fide” in connection with a pension plan in the Code.

The Board of Inquiry was asked to make a preliminary ruling on what constitutes a bona fide pension plan within the meaning of s. 3(6)(a) of the Code. That is the only issue before us.

Despite the invitation of an intervener, the Alberta Human Rights and Citizenship Commission, that we re-engage in a policy debate about the ongoing legitimacy of mandatory retirement generally, and, in particular, this Court’s related decisions in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, and Dickason v. University of Alberta, [1992] 2 S.C.R. 1103, this case does not present us with the proper opportunity to do so. No constitutional challenge has been made to the relevant provision of the Human Rights Code. As McLachlin J. observed in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”):

Although the various human rights statutes have an elevated legal status (Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321), they remain legislative pronouncements and, in the absence of a constitutional challenge, this Court must interpret them according to their terms, and in light of their purposes. [Emphasis added; para. 43.]

If s. 3(6)(a) is perceived to be in need of constitutional challenge or legislative revision, both options remain available. Neither, however, is before us. Our task, as a result, is limited to discerning what criteria satisfy the test in s. 3(6)(a) of the legislation.

Section 3 of New Brunswick’s Human Rights Code is the statutory framework for examining this issue. The particular provisions which guide the discussion are ss. 3(5) and 3(6)(a), both of which are highlighted:

3(1) No employer, employers’ organization or other person acting on behalf of an employer shall

(a) refuse to employ or continue to employ any person, or

(b) discriminate against any person in respect of employment or any term or condition of employment,

because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.

3(2) No employment agency shall, because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity, discriminate against any person seeking employment.

3(3) No trade union or employers’ organization shall

(a) exclude any person from full membership,

(b) expel, suspend or otherwise discriminate against any of its members, or

(c) discriminate against any person in respect of his employment by an employer,

because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.

3(4) No person shall

(a) use or circulate any form of application for employment,

(b) publish or cause to be published any advertisement in connection with employment, or

(c) make any oral or written inquiry in connection with employment,

that expresses either directly or indirectly any limitation, specification or preference, or requires an applicant to furnish any information as to race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.

3(5) Notwithstanding subsections (1), (2), (3) and (4), a limitation, specification or preference on the basis of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity shall be permitted if such limitation, specification or preference is based upon a bona fide occupational qualification as determined by the Commission.

3(6) The provisions of subsections (1), (2), (3) and (4) as to age do not apply to

(a) the termination of employment or a refusal to employ because of the terms or conditions of any bona fide retirement or pension plan;

(b) the operation of the terms or conditions of any bona fide retirement or pension plan that have the effect of a minimum service requirement; or

(c) the operation of terms or conditions of any bona fide group or employee insurance plan.

3(6.1) The provisions of subsections (1), (2), (3) and (4) as to age do not apply to a limitation, specification, exclusion, denial or preference in relation to a person who has not attained the age of majority if the limitation, specification, exclusion, denial or preference is required or authorized by an Act of the Legislature or a regulation made under that Act.

The Board, adopting the approach to s. 3(6)(a) advanced by the New Brunswick Human Rights Commission, concluded that once a prima facie case of age discrimination has been made out, the employer must satisfy the three-part “bona fide occupational requirement” test from Meiorin in order to show that the pension plan is bona fide ((2004), 52 C.H.R.R. D/508).

Russell J. set aside the Board’s decision ((2005), 291 N.B.R. (2d) 92, 2005 NBQB 183). Rather than the Meiorin approach, he found this Court’s analysis in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, to be applicable to pension plans. He held that even though, unlike the Ontario legislation at issue in Zurich, s. 3(6)(a) does not expressly stipulate that a pension plan be both bona fide and reasonable, both factors are nonetheless relevant in determining whether a pension plan is a bona fide one.

The New Brunswick Human Rights Commission appealed to the Court of Appeal. The employer cross-appealed Russell J.’s conclusion that the “reasonableness” portion of the Zurich test applies to the test for a bona fide pension plan under s. 3(6)(a).

Robertson J.A., writing for the majority in the Court of Appeal, agreed with Russell J. that the Board’s decision ought to be overturned ((2006), 301 N.B.R. (2d) 204, 2006 NBCA 74). He concluded that s. 3(6)(a) was a distinct provision, attracting a different test from the one set out in s. 3(5) dealing with bona fide occupational qualifications. In his view, s. 3(6)(a) was designed, in fact, to relieve employers who had a bona fide pension plan of any obligation under s. 3(5) to justify a mandatory retirement policy as a bona fide occupational qualification.

He also found, unlike Russell J., that the “reasonableness” aspect of the test from Zurich does not apply to s. 3(6)(a) because the word “reasonable”, which appears in the Ontario legislation, does not appear in the New Brunswick Code. The applicable test was, instead, the one stated in the legislation: the bona fides of the plan. Concluding that this was a test with both a subjective and objective component, Robertson J.A. explained:

It is possible to inject an objective component into the bona fides test without reading in a reasonableness test. It is not simply a question of whether an employer honestly believes that . . . the plan was not adopted for purposes of defeating protected rights. That belief has to be measured against an objective standard in the sense that the belief is reasonable in the circumstances of a particular case. For example, if the employer’s pension plan could not be registered under the Pensions Act of New Brunswick, the objective component of the bona fides test might be difficult to satisfy. But this is a far cry from reading into s. 3(6)(a) of the Human Rights Act a reasonableness test as formulated in Zurich Insurance. [para. 80]

For the following reasons, I agree with Robertson J.A.

Analysis

The New Brunswick Human Rights Code establishes a scheme whereby discrimination in employment on the basis of age is prohibited by s. 3(1) to (4). An age-related limitation of these rights is permitted, however, if it is based upon a “bona fide occupational qualification” (s. 3(5)). The Meiorin test is required here to determine whether the age-related limitation is “reasonably necessary to the achievement of legitimate work-related objectives” (Meiorin, at para. 50), and whether the complainant can be accommodated without imposing undue hardship on the employer.

A different framework is set out in s. 3(6)(a). It states very clearly that the protections from age discrimination found in s. 3(1) to (4) “do not apply” when the termination is “because of the terms or conditions of any bona fide retirement or pension plan”.

The New Brunswick Human Rights Commission urged this Court to apply the Meiorin “bona fide occupational requirement” test to determine whether, under s. 3(6)(a), a pension plan is bona fide. In so doing, it relied on this Court’s decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, where the Court said, “While the Meiorin test was developed in the employment context, it applies to all claims for discrimination under the B.C. Human Rights Code” (para. 19).

According to the Commission, a Meiorin analysis would require that an employer with a mandatory retirement provision in a pension plan prove:

(1) that the mandatory retirement policy was adopted for a purpose that is rationally connected to the pension plan’s effective operation or integrity; (2) that the mandatory retirement policy was adopted in good faith, in the belief that it was necessary to the fulfillment of that legitimate pension plan-related purpose or goal; and (3) that the mandatory retirement policy is reasonably necessary to accomplish the chosen pension plan-related purpose or goal, in the sense that it is impossible to accommodate individual members like the complainant without imposing undue hardship upon the employer or plan administrator. [Appellant’s Factum, at para. 83]

This is the same test that would apply under s. 3(5).

Section 3(6)(a) addresses “bona fide” retirement or pension plans. Section 3(5), on the other hand, is about “bona fide” occupational qualifications. I do not accept that the words “bona fide” in s. 3(6)(a) attract the same analysis in s. 3(6)(a) as they do in s. 3(5) just because they are both in a human rights statute. We must consider the meaning of the whole phrase, and cannot be guided only by the modifier “bona fide”, whose descriptive content emerges from, but does not define, the statutory context.

There is no doubt that the words “bona fide” have a unique pedigree in human rights jurisprudence. When the words are used together with “occupational qualification”, “occupational requirement” or “reasonable justification”, they have a well-understood meaning and represent an accepted term of art in the human rights world. With respect for the contrary view, the importance of the words “bona fide” in Canadian human rights law is not undermined by the recognition that, when they are used to qualify a different provision in a different context, they are to be given their ordinary meaning of “good faith”.

I accept that human rights legislation must be interpreted in accordance with its quasi-constitutional status. This means that ambiguous language must be interpreted in a way that best reflects the remedial goals of the statute. It does not, however, permit interpretations which are inconsistent with the wording of the legislation. I agree with L’Heureux-Dubé J.’s observation that “where legislation provides tribunals with a specific test for discriminatory justifications, the tribunals should apply that test” (Dickason, at p. 1157).

If both ss. 3(6)(a) and 3(5) meant the same thing, both requiring a Meiorin analysis, s. 3(6)(a) would be redundant. I agree with Robertson J.A.’s conclusion that

it is impermissible to read into s. 3(6)(a) a BFOQ test. To do so would defeat the clear intention of the legislature: to ensure that employers would not have to defend mandatory retirement policies by satisfying the BFOQ requirement set down in s. 3(5). Instead, employers may invoke the defence of bona fide pension plan. In brief, it makes no interpretative sense to have a BFOQ requirement in both s. 3(5) and s. 3(6)(a). [para. 43]

It is interesting to note that the New Brunswick Legislature introduced a Bill in June 2005 which would have repealed s. 3(6)(a) (Bill 62, An Act to Amend the Human Rights Act, 2nd Sess., 55th Leg., 2004-2005). This would have had the effect of requiring employers to justify mandatory retirement policies contained in their pension plans pursuant to the Meiorin analysis. Robertson J.A. pointed out the significance of this proposed (and eventually unimplemented) amendment:

. . . if this Court were to accept the Commission’s interpretative argument that s. 3(6)(a) includes a BFOQ component, there would be no need to repeal s. 3(6)(a). With or without the amendment, an employer would have to satisfy the BFOQ test articulated in Meiorin. In effect, the Commission is asking us to judicially repeal s. 3(6)(a) by adopting an interpretation that negates its obvious purpose. This is one more reason for refusing to read into s. 3(6)(a) a BFOQ test. [para. 65]

The legislature is addressing different concerns in each of ss. 3(5) and 3(6)(a). Pensions were treated differently from limitations or preferences based on occupational qualification because they arose from different protective concerns. This Court recognized in McKinney that “[i]n Canada, mandatory retirement developed with the introduction of private and public pension plans” (p. 293). As such, when age emerged as a protected ground under human rights legislation and, later, the Canadian Charter of Rights and Freedoms , there was widespread concern about its potential impact on legitimate pension plans.

In McKinney, La Forest J. reviewed the Ontario debates leading to the enactment of s. 9(a) of the Human Rights Code, 1981, S.O. 1981, c. 53, limiting protection from age discrimination in employment to people between the ages of 18 and 65. The words at second reading of the Hon. Bob Elgie, then Ontario Minister of Labour, are demonstrative of the concerns held by employees’ groups about the impact on pension plans of permitting age discrimination complaints:

. . . I can appreciate the views of those employees who fear that such a change might result in their delayed retirement and delayed benefits, especially for those older workers who wish to take advantage of what they have considered for years to be the normal age of retirement.

(Ontario Hansard, May 15, 1981, at p. 743)

This concern was voiced again at the Committee stage:

One cannot address this issue without thoughtful consideration of the real issues — the demographic issues, youth unemployment issues, pension benefits and the changes that may be suddenly thrown on people who had not planned it in that way. Those are things that have to be considered.

(Ontario Hansard, December 1, 1981, at p. 4097)

La Forest J. noted that “[t]he Legislature’s concerns were with the ramifications of changing what had for long been the rule on such important social issues as its effect on pension plans” (p. 302).

What the legislature was seeking to do in enacting s. 3(6)(a) was to confirm the financial protection available to employees under a genuine pension plan, while at the same time ensuring that they were not arbitrarily deprived of their employment rights pursuant to a sham. In New Brunswick, the pension plan exemption in s. 3(6)(a) was introduced in 1973, at the same time that “age” was added as a prohibited ground of discrimination to s. 3(1) (An Act to Amend the Human Rights Act, S.N.B. 1973, c. 45, ss. 3(1) and 3(3)). This was the way the Province, in its human rights legislation, sought to address the concern that age discrimination claims might make benefits available under bona fide pension plans vulnerable to being destabilized unless protected by legislation.

In fact, most Canadian jurisdictions expressly exempt pension plans from age discrimination claims and have different provisions for dealing with pension plans and for bona fide occupational requirements (Human Rights Code, R.S.O. 1990, c. H.19, ss. 24(1)(b) and 25(2.1); Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 20 and 20.1; Human Rights Act, R.S.N.S. 1989, c. 214, ss. 6(f)(i) and 6(g); Human Rights Code, R.S.B.C. 1996, c. 210, ss. 13(3) and 13(4); Human Rights Act, R.S.P.E.I. 1988, c. H-12, ss. 6(4), 11 and 14(1)(d); Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, ss. 16(4) and 16(7); Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 7(2) and 7(3); Human Rights Code, R.S.N.L. 1990, c. H-14, ss. 9(1) and 9(5); Human Rights Act, S.N.W.T. 2002, c. 18, ss. 7(2) and 7(3); and Human Rights Act, S. Nu. 2003, c. 12, ss. 9(2) and 9(4)).

The fact that these statutes treat pension plans differently from bona fide occupational requirements is, to me, confirmation that these provisions are intended to perform different protective functions and are subject to different analytic frameworks.

The French version of the statute, deemed by the Official Languages Act, S.N.B. 2002, c. O-0.5, s. 10, to be equally authoritative, also confirms the conclusion that “bona fide” means something different in s. 3(6)(a) than when used in s. 3(5) with the words “occupational qualification”. The equivalent of “bona fide” is expressed differently in s. 3(5) and in s. 3(6)(a). In s. 3(5), “bona fide occupational qualification” is “qualifications professionnelles réellement requises”. This accords with the underlying Meiorin principle, that the qualification must truly be required for the employment. In contrast, a “bona fide pension plan” in s. 3(6)(a) is a “régime de pension effectif”. “Effectif” means “concret, positif, réel, tangible” (Le Nouveau Petit Robert (2002), at p. 838). It does not mean “required”. Clearly the legislature intended different meanings to attach to each provision.

If the words “bona fide” in s. 3(6)(a) are not used the same way as in s. 3(5) and do not, as a result, attract a Meiorin analysis, what do they mean in relation to a pension plan?

I agree with Robertson J.A. that the words bona fide do not import the “reasonableness” analysis from Zurich. Zurich involved a complaint about motor vehicle insurance premiums. At issue was an interpretation of s. 21 of the Ontario Human Rights Code, 1981, which provided:

The right under sections 1 and 3 to equal treatment with respect to services and to contract on equal terms, without discrimination because of age, sex, marital status, family status or handicap, is not infringed where a contract of automobile, life, accident or sickness or disability insurance or a contract of group insurance between an insurer and an association or person other than an employer, or a life annuity, differentiates or makes a distinction, exclusion or preference on reasonable and bona fide grounds because of age, sex, marital status, family status or handicap.

Sopinka J., writing for the majority, concluded that an evaluation of an insurance contract under the Ontario legislation entailed the following two-part analysis:

In my opinion, a discriminatory practice is “reasonable” within the meaning of s. 21 of the Code if (a) it is based on a sound and accepted insurance practice; and (b) there is no practical alternative. Under (a), a practice is sound if it is one which it is desirable to adopt for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. Under (b), the availability of a practical alternative is a question of fact to be determined having regard to all of the facts of the case.

In order to meet the test of “bona fides”, the practice must be one that was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code. [Emphasis added; pp. 342-43.]

Unlike s. 3(6)(a), the Ontario legislation speaks of a distinction based “on reasonable and bona fide grounds” (s. 21). Section 3(6)(a) of New Brunswick’s Code speaks only of bona fides. I return to McLachlin J.’s admonition in Meiorin that “in the absence of a constitutional challenge, this Court must interpret [human rights statutes] according to their terms” (para. 43). Since s. 3(6)(a) does not use the word “reasonable”, it need not be imported.

I agree with Robertson J.A. too that the bona fides test is one with both subjective and objective components. The subjective requirements of “bona fides” are not difficult to define — they relate to motives and intentions. It is more difficult to explain what makes a pension plan, objectively, bona fide. In my view, a number of sources direct us to a relatively basic conclusion: a bona fide plan is a legitimate or genuine one.

Section 3(6)(a), notably, states that the age discrimination provisions do not apply to the terms or conditions of any “bona fide pension plan”. The placement of the words “bona fide”, it seems to me, is significant. What this immunizes from claims of age discrimination is a legitimate pension plan, including its terms and conditions, like mandatory retirement. It is the plan itself that is evaluated, not the actuarial details or mechanics of the terms and conditions of the plan. The piecemeal examination of particular terms is, it seems to me, exactly what the legislature intended to avoid by explicitly separating pension plan assessments from occupational qualifications or requirements. This is not to say that the bona fides of a plan cannot be assessed in relation to terms which, by their nature, raise questions about the plan’s legitimacy. But the inquiry is into the overall bona fides of the plan, not of its constituent components.

Black’s Law Dictionary (8th ed. 2004), at p. 186, defined “bona fide” as follows:

This Court’s explanation of “bona fides” in Zurich is also helpful: “was [the plan] adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code” (p. 343).

There are helpful benchmarks in other legislation dealing with pension benefits. In New Brunswick, pensions are governed by the Pension Benefits Act, S.N.B. 1987, c. P-5.1. In that Act, “pension plan” is defined in s. 1:

“pension plan” means a plan to provide pensions for members of the plan under which the employer or employers of the members are required to make contributions, but does not include

(a) an employees’ profit sharing plan or a deferred profit sharing plan as defined in sections 144 and 147 of the Income Tax Act (Canada) ,

(a.1) a registered retirement savings plan as defined in subsection 146(1) of the Income Tax Act (Canada) ,

(b) a plan to provide a retiring allowance as defined in subsection 248(1) of the Income Tax Act (Canada) , or

(c) any other prescribed arrangement;

“Pension” is defined as “a pension benefit that is being paid”, and “pension benefit” means:

. . . the aggregate monthly, annual, or other periodic amounts payable, other than ancillary benefits, to a member or former member of a pension plan during the lifetime of the member or former member, to which the member or former member will become entitled under the pension plan upon attainment of the normal retirement date, within ten years before that date or at any time after that date;

Pension plans must be registered under the Act (s. 7). Section 10 sets out the requisite documents for the creation of a pension plan and the information they must contain. If at any time the plan ceases to be in compliance with the Act, the Superintendent can revoke the registration of the plan (s. 13(1)).

While, pursuant to s. 13(2), registration of a pension plan under the Act “shall not be construed as proof that the plan or the amendment complies with this Act and the regulations”, it seems to me that at least one helpful indication of the bona fides of a pension plan is, as Robertson J.A. noted, whether it has been registered under this Act.

New Brunswick also has a Public Service Superannuation Act, R.S.N.B. 1973, c. P-26, which applies to employees in the public service. Section 26 of that Act concerns the ability of an employee to transfer pensionable service credits under a separate plan to the plan administered under the Act. A “bona fide pension plan” is defined for the purposes of that section as:

“bona fide pension plan” means any pension plan established for employees to which contributions were made, on a regular basis, by the employees and the employer principally for the purpose of providing a pension to the employees upon retirement;

Pension plans may also be registered under the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp .). As a condition of registration, the “primary purpose” of pension plans must be “to provide periodic payments to individuals after retirement and until death in respect of their service as employees” (Income Tax Regulations, C.R.C. 1978, c. 945, s. 8502(a)).

In the income tax context, the courts have had to determine whether a pension plan is bona fide or merely set up as a “sham” for the purpose of achieving a tax advantage. For example, in Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 408, Gibson J. found that the company’s pension plan was a masquerade, and that the parties and the trustee of the plan “never intended that it be a document that the parties would act upon” (p. 418). He relied on Snook v. London & West Riding Investments, Ltd., [1967] 1 All E.R. 518 (C.A.), where Lord Diplock said:

As regards the contention of the plaintiff that the transactions between himself, Auto‑Finance, Ltd. and the defendants were a “sham”, it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. [p. 528]

In my view, for a pension plan to be found to be “bona fide” within the meaning of s. 3(6)(a), it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.

Pension plans today are complicated and have, in many ways, evolved from the structures and options available in 1973 when s. 3(6)(a) was enacted. But this does not change the purpose of what was meant to be generic protection for all legitimate pension plans. Unless there is evidence that the plan as a whole is not legitimate, therefore, it will be immune from the conclusion that a particular provision compelling retirement at a certain age constitutes age discrimination.

I would dismiss the appeal with costs.

The reasons of McLachlin C.J. and Deschamps and Charron JJ. were delivered by

The Chief Justice —

The issue on this appeal is the interpretation of s. 3(6)(a) of the New Brunswick Human Rights Code, R.S.N.B. 1973, c. H-11, and in particular what is meant by the phrase “the termination of employment . . . because of the terms or conditions of any bona fide . . . pension plan”. This clause has the effect of carving out an exemption from the guarantee of the Code against discrimination on the basis of age. The question before us concerns the scope of that exemption.

The majority reasons hold that a bona fide pension plan is any defined, registered plan that at the time of adoption was not “a sham” (para. 24). Provided that the plan was adopted in good faith and not for the purpose of subverting employee rights, it exempts the employer from the obligation not to discriminate on the basis of age, even if the mandatory retirement imposed by the plan proves to be harsh, unreasonable or unnecessary to the successful operation of the plan.

I respectfully disagree. In my view, the term “bona fide” in s. 3(6)(a) of the Code means not only that the pension plan must not be a sham, but that limits on employee rights conferred by the Code must be justifiable in the sense of being reasonably required having regard to the operation and sustainability of the plan.

This reading of the Code, I will argue, is consistent with the principles of statutory construction, the purpose of the provision and the words chosen by the legislature. It preserves the employee’s right to be free of discrimination, unless the operation of the plan requires otherwise. At the same time, it permits employers to effectively administer pension plans; the employee may be terminated if continuing the employment would adversely affect the plan.

The task before the Court is one of statutory interpretation. The provision is not clear on its face, as the debates that have marked the history of this case prove. This requires the Court to engage in an interpretative inquiry based on the words and the purpose of the statute. That analysis leads me to conclude that a pension plan is exempt from the rights provisions of the Code if:

(1) the mandatory retirement provisions of the pension plan were adopted for a purpose rationally connected to the operation and sustainability of the plan;

(2) the mandatory retirement provisions were adopted in good faith and not as a sham to circumvent employee rights; and

(3) the mandatory retirement provisions are reasonably necessary having regard to the operation and sustainability of the plan.

2.1 Section 3(6) — An Overview of How It Operates

The New Brunswick Human Rights Code prohibits terminating an employee’s employment on the basis of age. Section 3(1) provides that “[n]o employer . . . shall . . . refuse to . . . continue to employ any person . . . because of . . . age”. Terminating employment on the basis of age constitutes prima facie discrimination under the Code. As determined in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), at p. 558, “A prima facie case . . . is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‑employer.” This is the starting point of the analysis.

Having established that terminating an employee on the basis of age constitutes prima facie discrimination, the Code goes on to provide limitations on the right not to be discriminated against on the basis of the listed grounds, including age.

Section 3(5) provides that a right may be limited by a “bona fide occupational qualification”. A bona fide occupational qualification refers to a limit on an employee’s rights that may be permitted having regard to the context or activity at issue in the workplace. I agree with the majority (at para. 12) that this section can be used to justify age-related limitations on employment terms, by showing that the policy is: (1) adopted for a purpose rationally connected to job performance; (2) adopted in good faith that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) reasonably necessary to the accomplishment of that legitimate work-related purpose: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”).

This brings us to the second limitation and the one at the heart of this case: s. 3(6)(a). It focuses specifically on pension plans and provides:

3(6) The provisions of subsections (1), (2), (3) and (4) as to age do not apply to

(a) the termination of employment . . . because of the terms or conditions of any bona fide retirement or pension plan;

The question is what is meant by “the terms or conditions of any bona fide . . . pension plan”.

I agree with the majority (at para. 13) that a different framework is envisioned by s. 3(6)(a), which applies specifically to termination under pension plans. As the majority argues, this case cannot be resolved simply by applying the Meiorin template. Nevertheless, the exemptions under ss. 3(5) and 3(6)(a) are part of the same statute and may be expected to reflect similar concerns. This may assist in the resolution of ambiguities that arise in applying s. 3(6)(a).

The employer argues that s. 3(6)(a) imposes on the employer the burden of showing that the pension plan was adopted without improper motive (judged subjectively) and conforms to usual business practices (judged objectively). The majority in this Court adopts a modified version of this test, which requires the employer to show only that the pension plan (1) was not adopted as a sham to circumvent employee rights, and (2) is registered under pension benefits legislation and meets the definition of a plan under pension legislation. The statute only says registration is not proof of compliance.

The Human Rights Commission, on the other hand, takes the position that the mandatory retirement policy must have been adopted in good faith for a purpose rationally connected to the pension plan’s operation or integrity, and that in addition the employer must show that it would be impossible to accommodate individual employees without imposing undue hardship on the employer or the plan. This is an individualized approach, requiring assessment of each employee’s particular situation, in order to decide whether accommodating that particular employee would be possible.

I adopt a position between that of the employer and that of the Human Rights Commission. I agree with the employer that the mandatory retirement provisions of the plan must have been passed in good faith and not constitute a sham. However, I cannot agree with the “usual business practice” requirement proposed by the employer as the second element of the test, nor with the minimal legitimacy requirement proposed by the majority. At the same time, I would reject the Human Rights Commission’s individualized approach. In my view, the focus under s. 3(6)(a) is on the pension plan. The issue is whether the mandatory retirement provisions of the plan are connected to its goals and are reasonably necessary for the operation and sustainability of the plan.

In my view, a test that requires the employer to show that the mandatory retirement provisions of the pension plan were adopted for a purpose rationally connected to the plan and are reasonably necessary having regard to its operation and sustainability, best reflects the legislature’s intent, based on the wording of s. 3(6)(a) and the applicable principles of statutory construction.

The starting point of statutory construction is the words of the statute. If they are clear, that is the end of the matter. Here, they are not clear. All the approaches canvassed before us require the Court to add to the words of s. 3(6)(a). All start from the premise that the term “bona fide” is ambiguous. We should be frank on this; there is simply no single clear way in which the section must be read. Insofar as the majority suggests that it is simply reading the section as it is written, I respectfully beg to differ. The test it proposes — the “no sham” test — is nowhere to be found in the words of s. 3(6)(a). The question remains: What did the legislature intend by the words “termination of employment . . . because of the terms or conditions of any bona fide . . . pension plan”?

Confronted with a phrase that can be interpreted in more than one way, we must turn to the principles of statutory interpretation. These require us to consider the words of the provision, read as a whole, “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.

The overall purpose of s. 3 of the New Brunswick Human Rights Code is to curtail discriminatory practices, in this case, discrimination on the basis of age. This is the dominant purpose of the legislation. The limitations that come after are just that — limitations to further the goal of preventing discrimination while permitting sufficient flexibility to ensure fairness and the achievement of employer goals in the workplace. They should be construed accordingly.

The general purpose of the limitation found in s. 3(6)(a), following this logic, is to permit the adjustments that may be necessary to allow pension plans to function properly. It follows that an interpretation should be adopted that permits pension plans to operate in a sustainable fashion, but that an interpretation that overshoots this purpose should be avoided.

The employer suggests that the limitation in s. 3(6)(a) was the result of a trade-off between the legislative goal of ending age discrimination and the concern of employers and unions to ensure that this goal would not harm pension plans. I accept this as a plausible description of the purpose of s. 3(6)(a). As the majority puts it (at para. 24), “[w]hat the legislature was seeking to do in enacting s. 3(6)(a) was to confirm the financial protection available to employees under a genuine pension plan, while at the same time ensuring that they were not arbitrarily deprived of their employment rights . . .”. I agree with this statement, while disagreeing with the qualifier the majority tacks on, “pursuant to a sham”.

I conclude that ss. 3(1) and 3(6)(a), read together, should be read as promoting the dual purposes of: (1) protecting employees under pension plans from being arbitrarily deprived of the right to work by age discrimination; and (2) protecting the financial security of employees by permitting pension plans to operate on a sustainable basis. Section 3(6)(a) is directed at resolving friction between these two goals when conflicts arise.

This said, and as discussed more fully below, the law accepts that the dominant purpose of human rights legislation is to protect the rights of individuals facing discriminatory practices. The law recognizes that these rights are not absolute, and must sometimes give way to conflicting considerations — considerations which, however, must always be justified.

Special rules of construction apply to human rights statutes. The protections they offer are viewed not merely as statutory, but as quasi-constitutional. From this follows the principle that human rights legislation must be given a broad, purposive and liberal interpretation. In O’Malley, this Court said:

It is not . . . a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment (see Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at pp. 157-58), and give to it an interpretation which will advance its broad purposes. [pp. 546-47]

It follows that the protections conferred by human rights legislation should be interpreted broadly and that the exceptions to the prohibition against discrimination are to be construed narrowly: Meiorin, at para. 50; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at p. 339; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 307; R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 376.

It also follows that in interpreting human rights statutes a strict grammatical analysis may be subordinated to the remedial purposes of the law. Thus, this Court “has repeatedly stressed that it is inappropriate to rely solely on a strictly grammatical analysis, particularly with respect to the interpretation of legislation which is constitutional or quasi-constitutional in nature”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 (“Quebec v. Montréal”), at para. 30 (citing Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, and O’Malley).

It is also established that in interpreting human rights legislation, courts should strive for an interpretation that is consistent with the interpretation accorded to similar human rights provisions in other jurisdictions. Different jurisdictions may phrase the protections and their limitations in different ways. Nevertheless, they should be interpreted consistently unless the legislature’s intent is clearly otherwise: University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 373. This principle, inter alia, supported the conclusion in Meiorin that B.C.’s Human Rights Code, although it made no reference to direct and adverse impact discrimination, should be interpreted as addressing both together, since doing so was consistent with other Canadian human rights codes (paras. 46 and 52).

Finally, when the meaning of a provision in a human rights statute is open to more than one interpretation, as here, it must be interpreted in a manner consistent with the provisions of the Canadian Charter of Rights and Freedoms : Quebec v. Montréal, at para. 42; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. The respondent employer makes much of the fact that this appeal is not a Charter challenge. Nevertheless, in interpreting the ambiguous phrase here at issue, the Charter properly informs the analysis.

I conclude that the right to be protected against age discrimination preserved by s. 3 of the Code is to be construed in a large and liberal fashion, consistent with the overall purpose of the Code. By contrast, exceptions such as s. 3(6)(a) should be construed narrowly.

Against this background, I turn to the wording of s. 3(6)(a). The most striking aspect of the words chosen by the legislature is the use of the same phrase, “bona fide”, to describe a bona fide occupational qualification in s. 3(5) and the pension plan limitation provision in s. 3(6)(a). When two terms of art are used in successive subsections within a single legislative provision, the inference is that the legislator intended them to have the same meaning and to function in similar ways. In the words of Sopinka J., “Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation”: R. v. Zeolkowski, [1989] 1 S.C.R. 1378, at p. 1387; see also Sullivan, at pp. 163-64. The analysis may vary in details to fit the particular context. However, the starting assumption is that the words were intended to convey the same general idea.

There is no dispute that “bona fide” in s. 3(5) is used in the sense of requiring the employer seeking to defend a limit on a human right to justify the need for that limit. To do this under s. 3(5), the employer must show that the limit was adopted for a purpose rationally connected to a workplace need, was adopted in good faith, and is reasonably necessary to accomplish a legitimate work-related purpose: Meiorin. The central implication of “bona fide” in s. 3(5) and in human rights law generally is the idea that it calls for justification of limits on human rights.

The use of the same term in s. 3(6)(a) suggests that the legislature had something similar in mind in enacting the pension plan exemption. It suggests, more particularly, that the legislature intended to introduce the idea that the employer must justify limits imposed by pension plans on the right of employees to be free from age discrimination. It suggests, finally, that this justification will be of the same type as required in other situations where the phrase bona fide is used. In other words, it suggests that where a prima facie case of age discrimination is made out, the employer will be called upon to show that the provision in the pension plan under which an employee is terminated is a reasonable measure in terms of the functionality and sustainability of the plan.

The majority, contrary to the normal rule of statutory construction, says that “bona fide” in ss. 3(5) and 3(6)(a) mean different things. It says that the phrase as used in s. 3(6)(a) has nothing to do with justification of the limit on the employees’ rights. Rather, it merely connotes the minimal requirement that the plan be a registered plan within pensions legislation and was not adopted as a sham to circumvent employee rights. Since all pension plans may be expected to be registered and to fall within the legislative definition of a plan, the majority test in effect reduces essentially to the requirement that the plan was not adopted as a sham to circumvent employee rights. The result is that the test requires no justification of the reasonableness of the limits on the employee’s rights.

The requirement that a measure that limits rights must not be a sham has always been part of the meaning of “bona fide” in the human rights context. It continues to form an essential element of the Meiorin test. But this is only a part of the full connotation of “bona fide”. The term means more. To reduce “bona fide” to the mere idea of not being a sham is to take an impoverished view of the term. The legislature must be taken to have understood the term “bona fide” in its full sense when it chose to use it in s. 3(6)(a).

The decision of Sopinka J. in Zurich is of little assistance in this regard. It was based on a provision of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, s. 21, that referred to “reasonable and bona fide grounds”. Sopinka J. stated that to meet the test of “bona fides”, the practice “must be one that was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code” (p. 343). This accurately reflects one part of the test for justification of limitations on human rights as it was then understood, which also, as affirmed by Sopinka J., required the Court to ask whether there were any other reasonable alternatives available. The state of the law and, in particular, the presence of the word “reasonable” in the Ontario Code meant that Sopinka J. did not need to consider the reasonableness component explicitly as an element of the impugned standard’s bona fides. To reiterate, “bona fide” includes the idea that the rights-limiting measure must not be a sham. The point is simply that it also includes much more.

It is argued that the phrase “bona fide” is grammatically linked to “pension plan”. This means, it is suggested, that the focus is on whether the plan, not the plan’s terms or conditions, must be bona fide. This argument merely pushes the question back one remove: what constitutes a bona fide pension plan? In the majority’s view, it is essentially any plan that was not adopted as a sham. In my respectful view, in addition to this requirement, “bona fide” connotes a plan whose mandatory retirement provisions are reasonably necessary having regard to the operation and sustainability of the plan. The majority concludes that the “plan as a whole” must be rendered legitimate. In my view, however, a plan whose terms or conditions unjustifiably limit the guaranteed human rights of employees is not a legitimate plan. It is a flawed plan and cannot be considered bona fide. The majority concludes that a plan that contains a mandatory retirement clause adopted to circumvent employee rights would render the “plan as a whole” illegitimate. So too, in my view, would a plan that contains an unjustifiable limit on employee rights. It may be helpful to read s. 3(6)(a) together with para. (b), which makes it clear that it is the operation of a plan’s terms or conditions that falls for scrutiny, suggesting that any justification must involve consideration of the integrity of the plan as a whole. (I note that, in any event, the grammatical point is not determinative. As discussed above, in interpreting human rights legislation, grammatical construction may be subordinated to the remedial purpose of the law: Quebec v. Montréal.)

The fact that “bona fide” modifies “pension plan” is, however, significant in one respect. It signals that the requirement of justification goes not to the situation of individual employees, but to the pension plan. The question is whether the prima facie infringement potentially imposed by the mandatory retirement provisions is justified as reasonably necessary to the operation and sustainability of the plan. The term “bona fide” with its requirement of justification of limits on rights must be adapted to the group context and the realities of pension plans and their administration. Pension plans are premised on treating groups of people in similar fashion. An individual approach belies this premise. It follows that the individualized inquiry applicable at the final stage of the bona fide occupational qualification analysis under s. 3(5) must be adapted in the context of s. 3(6)(a) to a group perspective more appropriate to pension plans.

It is argued that the French version of s. 3(6)(a) supports the view that all that is required is that the plan, at its inception, not have been a sham. The argument (at para. 27) is that the equivalent of “bona fide” in s. 3(5) is different than that in s. 3(6)(a), in that the word “requises” (required) appears in the French version of s. 3(5) but not in the French version of s. 3(6)(a). This is said to show that “[c]learly the legislature intended different meanings to attach to each provision.” But this argument does not hold up. In fact, the equivalent of “bona fide” is not different in the two sections. “Requises” in s. 3(5) does not correspond with “bona fides”, but is used to express “occupational qualification” or requirement. The latter phrase is not found in s. 3(6)(a), explaining why “requises” is not found in the French text of that section. It would not make sense to use “requises” to describe a pension. Moreover, the meaning the majority ascribes to the French term “effectif” in s. 3(6)(a) — “concret, positif, réel, tangible” — does not support the theory that all that is required is that the pension plan not have been a sham. “Réellement” is used in the French version of s. 3(5) in the sense of justified. “Réel”, one of the meanings of “effectif”, would seem to bring the same sense to the French version of s. 3(6)(a).

The majority, at para. 34, relies on the definition of “bona fide” in Black’s Law Dictionary (8th ed. 2004), at p. 186. It might be suggested that an American law dictionary is not the most authoritative source of a term that has over the decades assumed a special juridical meaning in Canadian human rights law. In any event, if one were driven to such lengths, the adjectives offered by the estimable lexicographers — “Made in good faith; without fraud or deceit” — are equally suggestive of the requirement that limits on rights be justifiable as of a bare “no-sham” threshold.

The majority suggests that to read “bona fide” in s. 3(6)(a) as doing more than merely foreclosing provisions adopted in bad faith, is to read words into the provision. On the contrary, I would argue that to confine “bona fide”, with its rich meaning in the Canadian human rights context to this narrow compass, is to artificially read it down. I agree with the majority that human rights legislation “does not . . . permit interpretations which are inconsistent with the wording of the legislation” (para. 19). I also agree with the majority that the Code treats pensions in a special and different way (paras. 21 to 26). And I emphatically agree with the majority when it states “[w]hat the legislature was seeking to do in enacting s. 3(6)(a) was to confirm the financial protection available to employees under a genuine pension plan, while at the same time ensuring that they were not arbitrarily deprived of their employment rights . . .” (para. 24). However, I cannot agree with the qualifier (“pursuant to a sham”) the majority proceeds to place on this description of the legislature’s purpose. I see nothing in the Code that confines its protection to such narrow and impoverished compass. To extend the scope of the s. 3(6)(a) exemption to any plan that was not a sham at its adoption, in fact commits the very sin of importing words to the provision, which the majority warns against doing.

I conclude that the use of the term “bona fide” in s. 3(6)(a) suggests that to trump s. 3 rights, a pension plan must be “bona fide” in the sense that the limits that its mandatory retirement terms impose, insofar as they limit the right of employees not to be discriminated against on the basis of age, must be capable of justification by the employer. As observed, “bona fide” in the context of workplace requirements (s. 3(5)) connotes the need for rational connection with a workplace goal, honest adoption of the limit, and reasonableness. “Bona fide” in s. 3(6)(a) logically connotes similar requirements, adapted to the context of pensions. This suggests that the limit on a right imposed by a mandatory retirement provision in a pension plan: (1) must be adopted for a purpose rationally connected to the operation and sustainability of the plan; (2) must not be a sham imposed to circumvent human rights; and (3) must not impinge on the right to be free from discrimination more than is reasonably necessary to maintain the functionality and sustainability of the pension plan.

Where a provision is open to more than one interpretation, it should be interpreted in a manner consistent with the provisions of the Charter. Under the Charter, as under human rights legislation generally, limits on rights must be justified by those seeking to impose them (in the case of the Charter, the state). The test proposed by the majority in this case forecloses such justification. It deprives the right of substance where pension plans are concerned. All that is required to override the employee’s right against age discrimination is that the employer, when it adopted the pension plan, perhaps many years before, did not act from improper motives, and that the plan is not a sham.

While the majority in this appeal would require no significant justification of the limitations on rights, the respondent employer, recognizing the need for more substantial justification, suggested that the test should contain an objective requirement that the employer show that the pension plan conforms to “usual business practices”. This would be, at most, a second-best substitute for the type of justification required by the Charter and more generally by human rights statutes. Usual business practices, while objective, do not constitute justification of discrimination and, indeed, may be associated with discrimination and the perpetuation of the wrongs it involves. The justification test I propose — whether the mandatory retirement provisions of the plan are reasonably necessary to the operation and sustainability of the plan — incorporates good business practices. It accomplishes the goals of the usual business practices rider proposed by the employer, without condoning discriminatory aspects of such practices. More importantly, the justification test I propose is consistent with the justification required under the Charter and human rights methodology, which looks to what is reasonable, necessary and minimally impairing.

Some provinces have adopted provisions similar to s. 3(6)(a), referring to “bona fide” pension plans. Others have used different words. The New Brunswick Public Service Superannuation Act, R.S.N.B. 1973, c. P-26, regulating transfer of pension benefits, and the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp .), use “bona fide” in different ways for different purposes. The majority relies on this to argue that the meaning of “bona fide” consistently used in human rights legislation and indeed, in other sections of the very statute at issue, should be rejected. With respect, I cannot concur.

The interpretation I propose is consistent with other human rights jurisprudence concerning pension plans that make age-based distinctions. For example, in O’Neill v. C.P.U. (1996), 28 C.H.R.R. D/24, the British Columbia Council of Human Rights, applying Zurich, based on its view that individualized assessment would be artificial in the pension context, held that a bona fide pension plan must be reasonable in order to be compatible with human rights principles (para. 31); see also Volkow v. Summit Logistics Inc. (2004), 49 C.H.R.R. D/261, 2004 BCHRT 43; Bogdanich v. Summit Logistics Inc. (2004), 46 C.C.P.B. 1, 2004 BCHRT 292; Soucie v. Transit Employees’ Health Benefit Plan, [2004] B.C.H.R.T.D. No. 346 (QL), 2004 BCHRT 322; Stefanuk v. Municipal Pension Board of Trustees (2007), 59 C.H.R.R. D/49, 2007 BCHRT 19; and Bégin v. Richmond School Dist. No. 38 (2007), 59 C.H.R.R. D/247, 2007 BCHRT 60. I note that in Bégin, the tribunal member defined the objective element of a plan’s bona fides as requiring that there be “no practical alternative” (para. 55).

In addition to being consistent with human rights jurisprudence, the interpretation I propose would also establish a uniform analysis applicable to all jurisdictions. Some jurisdictions, in legislating the exception for pension plans, have statutorily mandated the requirement of reasonable necessity. Quebec’s legislation requires pensions making age-based distinctions to be “warranted”, based on a risk analysis discernible from actuarial data (Charter of human rights and freedoms, R.S.Q., c. C-12, s. 20.1). The Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 25(2), protects pensions that comply with the province’s Employment Standards Act, 2000, S.O. 2000, c. 41, s. 44(1) of which prohibits employers from implementing benefit plans that make distinctions on the basis of age.

On the basis of the foregoing, I conclude that an interpretation of the term “bona fide pension plan” that fully protects employees from discrimination on the basis of age is both available, desirable and, indeed, mandated in the human rights context. Whether this principle is made explicit or whether it emerges from a textual, purposive and contextual analysis like the one I have performed here, the important legislative goal of stamping out discrimination is not to be undermined by strict adherence to outdated legal definitions.

3. Conclusion

For the reasons discussed, I conclude that the exemption from age discrimination found in the phrase “the termination of employment . . . because of the terms or conditions of any bona fide . . . pension plan” in s. 3(6)(a) of the New Brunswick Human Rights Code, should be interpreted as follows. A bona fide pension plan under s. 3(6)(a) is one whose mandatory retirement terms:

1. were adopted for a purpose rationally connected to the operation and sustainability of the plan;

2. were adopted in good faith and not as a sham to circumvent employee rights; and

3. are reasonably necessary having regard to the operation and sustainability of the plan.

This is not an individualized inquiry, but one related to the operation of the plan.

I would dismiss the appeal and remit the matter to the Board of Inquiry for disposition in accordance with the test proposed in these reasons.