Age discrimination complaint dismissed

Nova Scotia human rights board of inquiry dismisses workers' claim after he was forced to retire at age 65
|employmentlawtoday.com|Last Updated: 03/20/2009

A complaint of age-discrimination filed by a Nova Scotia man has been dismissed by a human rights board of inquiry.

William Talbot filed a complaint in 2004 with the Nova Scotia Human Rights Commission. He alleged he was discriminated against by his employer when he was required to retire from his job at the Cape Breton Regional Municipality (CBRM) and CUPE Local 759 because of his age.

Talbot, who worked for CBRM for nearly 30 years, was required to retire on Nov. 1, 2004, a few weeks after he turned 65. CBRM has a written policy of mandatory retirement at age 65. The policy is reflected in the collective agreement with Talbot’s union, the Canadian Union of Public Employees, Local 759.

No CBRM employee has been permitted to work later than the first day of the month after reaching 65.

CBRM’s pension plan

The board heard evidence about the municipality’s pension plan. The defined benefit plan is what the board called a “high quality” plan with assets of nearly $102 million as of Dec. 31, 2007.

Doug Brake, a consulting actuary and principal with Mercer, testified on behalf of CBRM. He said the pension plan is registered both federally and provincially and has always complied with the stringent rules governing pension plans.

The plan received employer and employee contributions in excess of $3 million in 2007, and continues to be in “good shape” at a time when many pension plans are struggling, said Brake. It pays out about $3.6 million per year.

Nova Scotia’s human rights legislation

The province’s Human Rights Act prohibits age discrimination in employment. However, it contains an exception for bona fide retirement or pension plans.

Therefore, the primary question before the board was whether the CBRM’s pension plan was bona fide. In her decision, board chair Cynthia Chewter concluded that the pension plan of the CBRM was a legitimate plan. Therefore, mandatory retirement according to the plan was allowed under the Nova Scotia Human Rights Act and Talbot's complaint was dismissed.

“I heard absolutely no evidence to suggest that the CBRM plan is illegitimate or a sham,” said Chewter in the decision. “By whatever relevant factors one chooses to apply, the evidence clearly establishes that the CBRM pension plan is a legitimate and genuine one.”

Chewter acknowledged that having access to a pension plan — even a good one such as CBRM — does not mean employees are willing to retire at a predetermined age.

“Indeed, Mr. Talbot was not ready to retire, despite his long service and access to an excellent pension plan,” said Chewter. “Employees may wish to continue to work for many reasons beyond bare economics, including a desire to contribute to their community or profession, to maintain their sense of identity, for achievement of personal goals, or to feel a daily sense of purpose.”

However, given the fact the pension plan was a bona fide one, she had no choice but to dismiss his complaint.

Complaint process

A complaint is referred to an independent board of inquiry when the Nova Scotia Human Rights Commission believes a prima facie case of discrimination is made after an investigation by a human rights officer. The chief judge of the provincial court selects a board chair from a roster and the commissioners ratify the nomination. The decision on the complaint is then in the hands of the independent board.

Evidence collected during investigation of a complaint is presented at the hearing by the commission's legal counsel. The complainant and respondent can make submissions and question witnesses. The board chair then decides whether discrimination has occurred.

All parties have a right to appeal decisions of boards of inquiry to the Nova Scotia Court of Appeal.

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