Winnipeg School Division No. 1 v. Craton

McIntyre J.‑‑This appeal must resolve the conflict between s. 6(1) of The Human Rights Act, 1974 (Man.), c. 65, as amended; C.C.S.M., c. H175, which prohibits discrimination in employment on account of age, and s. 50 of The Public Schools Act, 1980 (Man.), c. 33; C.C.S.M., c. P250, which empowers a school board to fix a compulsory retirement age for teachers.

The facts may be shortly stated. The respondent, Doreen Maud Craton, is a teacher in The Winnipeg School District No. 1. She is employed pursuant to a collective agreement between the School Division and the Manitoba Teachers' Society. The Collective Bargaining Agreement contains a provision for mandatory retirement of teachers at age sixty‑five. Mrs. Craton turned sixty‑five in January, 1983 and was notified that her employment would be terminated as of August 31, 1983. She applied by way of originating notice of motion in the Court of Queen's Bench for a declaration that the mandatory retirement provision in the Collective Bargaining Agreement is invalid because it contravenes the Manitoba Human Rights Act, and that her employment could not be terminated by reason of her reaching the age of sixty‑five. The respondent succeeded at trial and on appeal (Monnin C.J.M., Hall and Huband JJ.A.) This appeal is by leave granted November 24, 1983.

The relevant statutory provisions are set out hereunder:

The Human Rights Act, 1974 (Man.), c. 65, as amended; C.C.S.M., c. H175, s. 6(1):

6 (1) Every person has the right of equality of opportunity based upon bona fide qualifications in respect of his occupation or employment or in respect of training for employment or in respect of an intended occupation, employment, advancement or promotion, and in respect of his membership or intended membership in a trade union, employers' organization or occupational association; and, without limiting the generality of the foregoing

(a) no employer or person acting on behalf of an employer, shall refuse to employ, or to continue to employ or to train the person for employment or to advance or promote that person, or discriminate against that person in respect of employment or any term or condition of employment;

(b) no employment agency shall refuse to refer a person for employment, or for training for employment, and

(c) no trade union, employers' organization or occupational association shall refuse membership to, expel, suspend or otherwise discriminate against that person; or negotiate, on behalf of that person, an agreement that would discriminate against him;

because of race, nationality, religion, colour, sex, age, marital status, physical or mental handicap, ethnic or national origin, or political beliefs or family status of that person.

The Public Schools Act, R.S.M. 1970, c. P250, s. 39(2):

39 (2) The board of an area may fix a compulsory retirement age for teachers employed by it; but the compulsory retirement age shall not be less than sixty‑five years of age.

The Public Schools Act, 1980 (Man.), c. 33; C.C.S.M., c. P250, s. 50:

50 A school board may fix a complusory retirement age for teachers employed by it but the compulsory retirement age shall not be less than 65 years of age.

The relevant provisions of the Collective Bargaining Agreement are found in article 14:

14. Retirement Date‑‑The compulsory retirement date for each teacher will be the 31st day of August coinciding with, or next following, the date upon which the teacher attains the age of sixty‑five years, and no teacher shall be continued in the service of the Division beyond normal retirement age.

In the Court of Appeal, Monnin C.J.M. found that there was a clear conflict between s. 50 of The Public Schools Act and s. 6(1) of The Human Rights Act. Section 50 of The Public Schools Act had been passed in 1980, but was to the same effect as s. 39(2) of the 1970 consolidation (which preserved the identical language of the original enactment in 1964) and, therefore, could not have been intended as an exception to the provisions of The Human Rights Act. Furthermore, human rights legislation is public and fundamental law of general application and prevails where there is a conflict with other specific legislation unless an exception is created. Consequently, s. 50 of The Public Schools Act and article 14 of the Collective Bargaining Agreement were void and could not operate to compel Mrs. Craton's retirement. Hall J.A. agreed with the Chief Justice, adding that s. 39(2), as enacted in 1964, though repealed as part of a general revision in 1980, was re‑enacted with no material change as s. 50 of The Public Schools Act. He said, in answer to the appellant's contention, that the 1980 Public Schools Act was a later enactment than s. 6(1), and therefore by implication an exception to The Human Rights Act:

I cannot accept that the mere mechanics of repeal and re‑enactment should be determinative of the question of whether the Human Rights Act displaces the Public Schools Act.

Huband J.A. dissented. He would have allowed the appellant's appeal on the basis that while The Human Rights Act would override s. 39(2) of the old Act, the fact that the new Public Schools Act was passed in 1980, subsequent to The Human Rights Act, reaffirmed the authority of the Board to set a compulsory retirement age. He regarded s. 50 as specific legislation relating only to teachers and creating a limited exception to s. 6(1) of The Human Rights Act.

There is no merit in the argument raised below, but not pressed in this Court, that the parties by agreeing to article 14 in the Collective Bargaining Agreement have contracted themselves out of the provisions of s. 6(1). The Human Rights Act is legislation declaring public policy and may not be avoided by private contract. See: Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at pp. 213‑14. Accordingly, there is only one issue in this case: is s. 50 of the 1980 Public Schools Act effective to create an exception to the prohibition against discrimination on the basis of age set out in s. 6(1) of The Human Rights Act?

The appellant contended that The Public Schools Act of 1980 was not a mere re‑enactment and consolidation of the earlier statute, but was actually specific legislation designed to reaffirm the right of the Board to create a mandatory retirement age for school teachers, despite the provisions of The Human Rights Act. For this proposition, reliance was placed on Winnipeg School Division No. 1 v. MacArthur, [1982] 3 W.W.R. 342, a decision of Kroft J. of the Manitoba Court of Queen's Bench. The case is not, in my view, of any assistance to the appellant. It turned largely on the question of whether a school is "any accommodation, service or facility customarily available to the public", an issue of no significance here. In obiter Kroft J. said, at p. 356, that:

When the Legislature in 1980 enacted the Public Schools Act, it must be assumed that it did so with full knowledge of the provisions of the Human Rights Act.

This case, however, was decided before Heerspink, infra, in this Court, and for the reasons stated below I do not consider that the quoted words advance the appellant's position.

The record discloses, as we have seen above, that s. 39(2) is the first statutory enactment with which we are here concerned. Had it not been for the 1980 consolidation, which included s. 50, no question would have arisen as to which provision would govern. Section 6(1) of The Human Rights Act, enacted in 1974, was clearly a subsequent enactment and an express prohibition against discrimination in employment on the basis of age and, even setting aside the notion of any primacy for human rights legislation, it would have prevailed and repealed s. 39(2) by implication. There is no significant difference between the two sections, 39(2) and 50, and I am in agreement with the majority of the Court of Appeal that the enactment of s. 39(2) as s. 50 of the 1980 consolidation cannot be considered to have repealed s. 6(1) by implication. I am strengthened in this view by the words of William J. in Morisse v. Royal British Bank (1856), 1 C.B. (N.S.) 67; 140 E.R. 27, at p. 35:

The only point which presented any plausibility of argument was, the suggestion that the 10th section of the 7 & 8 Vict. c. 111 was repealed by the 182nd section of the last bankrupt act, 12 & 13 Vict. c. 106. But it is clear that this last‑mentioned provision cannot, by merely re‑enacting a previous section of the 6 G.4, c. 16, operate a repeal of the intermediate enactment.

And by the words of Willes J. in the same case, at p. 36:

As to the construction of the 182nd section of the bankrupt act, there is a recent case before Vice‑Chancellor Kindersley, of Wallace v. Blackwell, 3 Drewry, 538, where the change of position of a clause, by its re‑enactment in a subsequent statute, was considered not to vary its operation.

I am therefore of the view that the appellant must fail on this point. Section 50 of The Public Schools Act of 1980 cannot be considered a later enactment having the effect of creating an exception to the provisions of s. 6(1) of The Human Rights Act.

In any event, I am in agreement with Monnin C.J.M. where he said:

Human rights legislation is public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern.

This is in accordance with the views expressed by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Human rights legislation is of a special nature and declares public policy regarding matters of general concern. Is is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims. In this case it cannot be said that s. 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of s. 6(1) of The Human Rights Act.

I would therefore dismiss the appeal with costs.