A-536-80
Pacific Pilotage Authority (Applicant)
v.
Kenneth Arnison and the Canadian Human Rights
Commission (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D. J.—Montreal, October 24; Ottawa, October 31,
1980.
Judicial review — Application to review and set aside a
decision of Human Rights Tribunal that removal of respond
ent Arnison upon reaching age 50 from an employment eligi
bility list was discriminatory practice — Section 4(1)(a) of
General Pilotage Regulations specifies minimum and max
imum ages for licence applicants — Whether Tribunal erred in
law in finding that s. 4(1)(a) was ultra vires on the ground that
a maximum age qualification could not be considered a mini
mum qualification respecting age under s. 42(a) of the Pilotage
Act — Application allowed — "Minimum" qualifies the word
"qualifications" and not the word "age", and indicates rela
tionship of power of Governor in Council to prescribe qualifi
cations to that of Pilotage Authority — Canadian Human
Rights Act, S.C. 1976-77, c. 33, ss. 3, 7, 10, 14(b) — General
Pilotage Regulations, C.R.C. 1978, Vol. XIII, c. 1263, s.
4(1)(a) — Pilotage Act, S.C. 1970-71-72, c. 52, ss. 14(1)(f),(g),
42(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
APPLICATION for judicial review.
COUNSEL:
William O'M. Forbes for applicant.
Allan E. Black for respondent Kenneth
Arnison.
Russell G. Turiansz for respondent Canadian
Human Rights Commission.
SOLICITORS:
Owen, Bird, Vancouver, for applicant.
McTaggart, Ellis & Company, Vancouver,
for respondent Kenneth Arnison.
Canadian Human Rights Commission,
Ottawa, for respondent Canadian Human
Rights Commission.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is a section 28 application to
review and set aside a decision of a Human Rights
Tribunal appointed under section 39 of the
Canadian Human Rights Act, S.C. 1976-77, c. 33,
to inquire into a complaint of discriminatory prac
tice. In its decision dated July 28, 1980 the Tri
bunal found that the removal of the respondent
Captain Arnison, upon his attaining the age of 50,
from the eligibility list maintained by the applicant
for the employment of pilots was a discriminatory
practice within the meaning of the Act and
ordered that he be restored to his former position
on the list.
It is conceded that the action taken by Pacific
Pilotage Authority amounted to a refusal to
employ within the meaning of section 7 of the Act
or the application of a policy in relation to employ
ment within the meaning of section 10. These
provisions read as follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
Section 3 of the Act defines prohibited grounds
of discrimination as follows:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
The position adopted by Pacific Pilotage Au
thority is that it was required by law to take the
action it did, specifically by section 4(1)(a) of the
General Pilotage Regulations, C.R.0 1978, Vol.
XIII, c. 1263, which reads as follows:
4. (1) Every applicant for a licence shall be
(a) not less than 23 years of age and not more than 50 years
of age; .. .
The Authority relies on section 14(b) of the
Canadian Human Rights Act, which reads:
14. It is not a discriminatory practice if
(b) employment of an individual is refused or terminated
because that individual
(i) has not reached the minimum age, or
(ii) has reached the maximum age
that applies to that employment by law or under regulations,
which may be made by the Governor in Council for the
purposes of this paragraph;
The Tribunal held that section 4(1)(a) of the
General Pilotage Regulations was ultra vires in so
far as it purported to fix a maximum, as well as a
minimum, age as a qualification that must be
possessed by an applicant for a licence. The Au
thority did not, in argument before this Court,
challenge the jurisdiction of the Tribunal to rule
on the validity of the General Pilotage Regula
tions, but it contended that its conclusion on the
question of validity was wrong in law.
Section 4(1)(a) of the General Pilotage Regula
tions was adopted by the Governor in Council
pursuant to section 42(a) of the Pilotage Act, S.C.
1970-71-72, c. 52, which reads as follows:
42. The Governor in Council may make regulations
(a) prescribing for any region or part thereof the minimum
qualifications respecting the navigational certificates, experi
ence at sea, age and health of an applicant that an applicant
shall meet before he is issued a licence or pilotage certificate;
The question of validity turns on the sense in
which the word "minimum" is used in section
42(a). The Tribunal took the view that a max
imum age could not be a minimum qualification
respecting age within the meaning of the section.
In my opinion it was wrong. The word "minimum"
qualifies the word "qualifications" and not the
word "age", and the sense in which the expression
"minimum qualifications" is used in section 42(a)
is to be seen in section 14(1) (f) of the Act where
the expression is first used to distinguish the
qualifications prescribed by the Governor in Coun
cil from those which may be prescribed by a
Pilotage Authority. Section 14(1) (f) reads as
follows:
14. (1) An Authority may, with the approval of the Gover
nor in Council, make regulations necessary for the attainment
of its objects, including, without restricting the generality of the
foregoing regulations
(/) prescribing the qualifications that a holder of any class of
licence or any class of pilotage certificate shall meet, includ
ing the degree of local knowledge, skill, experience and
proficiency in one or both of the official languages of Canada
required in addition to the minimum qualifications pre
scribed by the Governor in Council under section 42;
The words "in addition to the minimum qualifi
cations prescribed by the Governor in Council
under section 42" indicate, in my opinion, that the
word "minimum" is used in the sense of basic, to
indicate the relationship of the power of the Gov
ernor in Council to prescribe qualifications to that
of a Pilotage Authority. It is this distinction,
drawn in section 14(1)(f), that indicates the reason
for the use of the word "minimum" in section
42(a). Otherwise, it would have been sufficient in
section 42(a) to use the word "qualifications"
without a modifier, since in the absence of a power
to prescribe additional or stricter qualifications the
word "minimum" would add nothing to what is
ordinarily conveyed by the word "qualifications."
Counsel for the respondents argued that section
14(1)(f) could not be invoked as an aid to the
interpretation of the word "minimum" in section
42(a) because it speaks of the qualifications of a
"holder" of a licence, whereas section 42(a) speaks
of the qualifications of an "applicant" for a
licence. I find this contention to be without merit
because, whether or not there is a meaningful or
practical distinction between the qualifications
required of an applicant and those required of a
holder, what is significant about the language of
section 14(1)(f) is that by the words "in addition
to the minimum qualifications prescribed by the
Governor in Council under section 42" Parliament
has indicated the sense in which the word "mini-
mum" is used in section 42(a). In any event, the
significance to be attached to the use of the word
"holder" in section 14(1) (f) is far from clear in
view of the terms of section 14(1)(g) which speak
of the qualifications prescribed under paragraph
(f) as being applicable to both a holder and an
applicant. It reads:
14. (1) An Authority may, with the approval of the Gover
nor in Council, make regulations necessary for the attainment
of its objects, including, without restricting the generality of the
foregoing regulations
(g) prescribing the manner for determining whether
(i) a person who applies for a licence or pilotage certifi
cate, or
(ii) a licensed pilot or holder of a pilotage certificate
meets the qualifications prescribed under paragraph (f) for
the class of licence or pilotage certificate that he holds or for
the issue of which he has applied, as the case may be.
Given the meaning to be attributed to the word
"minimum" in section 42(a), a maximum age
beyond which an applicant may not be granted a
licence is a qualification respecting age within the
meaning of the provision. Such a qualification,
which involves the consideration of what is an
appropriate age to enter the field of pilotage, is not
in my opinion incompatible or in conflict with the
provision of a mandatory retirement age of 65
pursuant to section 15(7) of the Act.
In the result, I am of the opinion that the
removal of Captain Arnison's name from the eligi
bility list for the employment of pilots could not be
a discriminatory practice within the meaning of
the Canadian Human Rights Act because it
amounted to a refusal to employ for a reason
validly imposed by law. It was not argued before
us whether, as a general principle, the provisions of
the Canadian Human Rights Act could affect the
validity or application of statutory regulations that
have been otherwise validly adopted, but without
expressing an opinion on that question I am satis
fied that the refusal of employment in the present
case is sufficiently covered by the terms of section
14(b) of the Act, which was quoted earlier in these
reasons.
In view of this conclusion it is unnecessary to
express an opinion on the applicant's second
ground of attack: that the Tribunal erred in law in
concluding that the maximum age in section
4(1)(a) of the General Pilotage Regulations was
not based on a bona fide occupational requirement
within the meaning of section 14(a) of the
Canadian Human Rights Act.
I would allow the application, set aside the
decision of the Tribunal and refer the matter back
for disposition upon the basis that the removal of
Captain Arnison from the eligibility list main
tained by the applicant was not a discriminatory
practice within the meaning of the Canadian
Human Rights Act.
In view of the fact that it was at the request of
the applicant, for reasons of urgency, that the
hearing of the application was held in Montreal
rather than Vancouver, I would order the appli
cant to pay the reasonable travelling expenses
incurred by counsel for the respondent Captain
Arnison in attending the hearing, but I would
make no other order as to costs.
* * *
PRATTE J.: I agree.
* * *
HYDE D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.