1990 S.H. No. 71965 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HUGH JONES and WILLIAM AHERN and TECHNICAL UNIVERSITY OF NOVA SCOTIA RESPONDENT HEARD: At Halifax, Nova Scotia, before the Honourable Mr. Justice D. Merlin Nunn, in Chambers, on June 28th, 1990 TRIAL BRIEFS FILED: August 2, 1990 DECISION: November 5, 1990 COUNSEL: Thomas Donovan, for the Applicants Eric Durnford, for the Respondent 1990 S.H. No. 71965 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HUGH JONES and WILLIAM AHERN and TECHNICAL UNIVERSITY OF NOVA SCOTIA NUNN, J. This is an application under Sections 15(1), 24(1) and 52(1) of the Canadian Charter of Rights and Freedoms for:(a) an Order declaring that the mandatory retirement of the applicants by the respondent is invalid and infringes, denies and is .inconsistent with the rights of the applicants as guaranteed under Section 15(1) and (7) of the Canadian Charter of Rights and Freedoms and that the applicants be reinstated as full time members of the Faculty of the respondent immediately and that the respondent pay to the applicants all compensation due to them as employees since the date of their mandatory retirement plus interest, and(b) costs of this proceeding. At the outset of this hearing, was urged by counsel for the applicants to render decision as quickly as possible because of the time which had elapsed since their respective retirement and so that, if reinstated, they could commence work at the beginning of the September, 1990 university term. While that course of action may have well suited the applicants, it was not, in my opinion, the proper course to follow. The whole question of the application of the Canadian Charter of Rights and Freedoms to universities and perhaps other similar bodies is currently before the Supreme Court of Canada in three cases, namely, Harrison and Connell v. University of British Columbia (1988), 1988 CanLII 183 (BC CA), 49 D.L.R. (4th) 687; Stoffman et al v. Vancouver General Hospital et al (1988), 1988 CanLII 3076 (BC CA), 49 D.L.R. (4th) 727 and McKinney v. University of Guelph et al (1987), 1967 CanLII 47 (SCC), 63 D.L.R. (2d) 1. All three of these cases were heard in March of 1989 and decision could come at any time. had deliberately held off deciding this matter awaiting that decision which might be conclusive as to the questions in issue. However, in view of the fact that no decision has been filed by the Supreme Court of Canada and there is no indication that decision is imminent, think it appropriate to wait no longer. The facts as to each applicants claim is set forth in each of their affidavits on file herein. In summary, the applicant, Jones, states that he was employed by the respondent as full time member of faculty and as researcher in the Engineering Physics Department. His interest was in the field of acoustics. He attained the age of 65 on March 12, 1988. By letter dated February 17, 1988 from the respondent's Personnel Officer, he was advised that, in accordance with the Collective Agreement between the respondents and the Faculty Association, he would be retired on March 31, 1988, the end of the month in which he reached 65 years of age. Article 28.01 (a) of the Collective Agreement referred to states: "Consistent with the provisions of the Public Service Superannuation Act: (i) Normal retirement from the University for member shall be on the last day of the month in which the member reached the age of 65." Article 28.02 states: "The Board may employ member beyond the‑retirement date on terms and conditions to be agreed between the Board and the member." Jones states that he wrote the President of the respondent letter dated December 15, 1987 indicating he did not wish to retire when he reaches 65 and claims he indicated this on other occasions prior and subsequent to his retirement. This is disputed by the respondent. Jones did retire on March 31, 1988. Then on December 22, 1988 and January 9, 1989, he wrote to the President of the respondent requesting reinstatement, which was refused. On January 17, 1989, responding to the applicant's letter of January 2, both of which followed decision of the Nova Scotia Court of Appeal in the case of Snider et al v. Nova Scotia Attorney General et al (1988), N.S.R. (2d) 91, the Nova Scotia Human Rights Commission advised Jones that it would not accept complaint from him indicating that the Commission's position was that the Snider case did not apply retroactively to invalidate what was valid action at the time it was taken. Apparently Jones also wrote the President of the respondent on January 9, 1989 asking for full time faculty appointment "for period of at least one year." The President referred to this letter as well as Jones' letter of December 12, 1988 to the former president wherein he asked for "reinstatement as of the 1st of April, 1988" and refused to reinstate him also alleging that the Snider case was not retroactive in effect. Following this, on April 10, 1989, Jones' solicitor wrote to the Nova Scotia Human Rights Commission requesting their reconsideration of Jones' complaint which request was again rejected. By Originating Notice (Application Inter Partes), an action was commenced on June 13, 1989 to compel the Nova Scotia Human Rights Commission to process Jones' complaint. Before the application was to be heard on January 30, 1989, the Commission advised Jones' solicitor that they would accept the complaint and that resort to the Courts would not be necessary. As result formal complaint was filed in February 1990 which complaint is now being processed. There are two other facts relating to Jones to make the story complete. First, pursuant to Article 28.02 of the Collective Agreement, Jones and the Board agreed that Jones would be employed from April 1, 1988 to December 1, 1988 as an Adjunct Professor in the respondent's faculty at substantially lower salary than he had been receiving, though presume he was also receiving his pension. Secondly, prior to his retirement, he requested the Faculty Association to file grievance on his behalf. The executive of the Association decided to hold the grievance in abeyance pending the forthcoming decision in the Snider case and, following that decision, the executive declined to process the grievance. The co‑applicant, Ahern, was also employed by the respondent. He reached age 65 on the 4th day of October 1987 and by similar letter to that of Jones was advised that he would retire on October 31, 1987. At that time, Section 28 of the Collective Agreement provided: "28.01 Normal retirement date from the employ of the University for member shall be on June 30 of the year in which the member attains the age of 65. The Board may employ person beyond normal retirement age." On February 16, 1987, Ahern wrote to the University alleging his retirement date was incorrect and should have been June 30, 1988 according, in his view, to the Collective Agreement and that he would be filing grievance. He indicated two claims. The first related to his view of the normal retirement date and the second was asserting right to non‑discrimination on the basis of age referring to the Charter of Rights and Freedoms. The respondent offered work to Ahern to December 22nd of that year at specific salary, not at all comparable to his regular salary. Ahern refused and made counter‑offer which the respondent refused. He retired on October 31, 1987. On November 3, 1987 the Faculty Association advised the respondent that it would be supporting Ahern's grievance with regard to the claim that his normal retirement date should be June 30, 1988. This grievance was processed through Arbitration and an Award was made upholding Ahern's view of the Collective Agreement, that is, Ahern's proper normal retirement date was, indeed, June 30, 1988. It reserved on the matter of damages and was to hear the parties on that issue at later date. On December 28, 1988, following the publications of the Snider decision, Ahern wrote the respondent requesting reinstatement with back pay on the strength of the Snider decision which in his words "struck down forced retirement because of age". The respondent's President replied indicating that it was inappropriate to respond to his request at that time because of the pending grievance but also indicated that the Snider decision did not invalidate the University's retirement policy. Ahern again wrote several letters on this point to the respondent culminating in his letter of November 14, 1989, in which he indicated that the grievance had been decided in his favour and indicating that the age discrimination clause in the Nova Scotia Human Rights Act had been declared unconstitutional by virtue of the Snider decision. He claimed immediate reinstatement and full compensation for lost salary and other benefits retroactive to his date of retirement. On January 6, 1989, he requested the Nova Scotia Human Rights Commission to investigate his complaint but the Commission refused on the same grounds as it refused Jones. Nothing further was done by Ahern until he learned on February 1, 1990, from his solicitor, that the Human Rights Commission was accepting for investigation claims of this nature which arose before the Snider decision, whereupon he filed complaint with the Commission which is now being processed. He had also, in January, asked the Faculty Association to proceed, presumably by way of grievance, to obtain his reinstatement but the Association declined to do so. Essentially, the only differences between Jones and Ahern, setting aside the alleged letter of December 15, 1987 which was put into question by the Affidavit of Lorabeth Ritch, were that Jones accepted his retirement at the appropriate time as set forth in the agreement, agreed to continued term work and only requested reinstatement on the basis of the Snider case after he learned of it, that decision being handed down December 1, 1988. Ahern, on the other hand, raised the Charter of Rights and Freedoms prior to his mandatory retirement date, as well as the other issue as to the correct date. He grieved through to Arbitration, winning on the date issue, and, after the Snider decision, pressed his claim for reinstatement through to the present complaint to the Human Rights. Commission. The respondent filed several affidavits as well. The first, that of Donald Roy, Dean of Engineering, related particularly to the employment of Jones responding to items in Jones' affidavit concerning grants and equipment. need not set out these details here. The second affidavit was that of Dexter Kaulback, Vice‑President Administration of the respondent who described the administration of the respondent. He stated that the respondent is a wholly independent institution of post secondary education which manages, administers and controls its property, revenue, business and affairs through its Board of Governors and administration department. Academic governance of the University is vested in the senate subject to the Collective Agreement. Of 31 Board members, are appointed by the Governor‑in‑Council. According to Mr. Kaulback, the government of Nova Scotia exercises no control over the day to day affairs of the respondent, including personnel and labour relations. The only real relationship between the government of Nova Scotia and the respondent is that the former provides the respondent with certain funding, 95% of which is unrestricted as to use with the remaining 5% restricted to capital renovations, purchases and the like. In his affidavit, he refers to Section 34(1) of the Technical University of Nova Scotia Act which deems employees of the respondent to be employed in the public service for purposes of the Public Service Superannuation Act and states that "this provision is holdover from the former circumstances that prior to the independent establishment of the University under its own statute, employees of the University were part of the Civil Service of the Province of Nova Scotia". He continued to say that regardless of that provision the matter of pensions is negotiable by the respondent and the Association but that no change in such plan was made since significant number of faculty had been participating in the government plan. According to Mr. Kaulback, the respondent has been free of any influence of the government with regard to its pension and retirement policies. He concludes his affidavit stating that the respondent is not an arm of the government but rather is fully dependent institution of higher learning. The third affidavit filed by the respondent was that of Lorabeth Ritch, Director of Personnel of the respondent.. She disputes number of matters set forth in the Jones' affidavit indicating that Jones was not mandatorily retired on March 31, 1988 as he claims. The respondent discussed with Jones an early retirement option and by letter of August 21, 1986 to Jones the conditions of an early retirement offered to him. By letter dated August 21, 1986 Jones declined the offer concluding his letter with "I will retire on March 31, 1988 in the normal way." She also states that Jones' alleged letter of December 15, 1987 was never received by the respondent and his suggestions that he made it clear both before and after March 31, 1988 that he did not wish to retire were never made or reported to her and she administers all aspects of the retirement of the respondent's employees and faculty. She states that his actions were entirely consistent with an agreement by him to retire on March 31, 1988. As to Jones' complaint as to this adjunct professor being "less than satisfactory" as alleged in paragraph of the Jones affidavit, she states that its terms were in accordance with his request. The respondent had only accepted Jones' own arrangement and Jones never gave an indication of any dissatisfaction. She refers to letter from Jones to Dr. Heaps, Vice‑President Research dated December 2, 1988 which indicates that if he does not receive further contract of employment by December 15, he intends to activate certain pensions and will not return to the respondent on January 1, 1989 or at any subsequent date. She states very definitely that Jones retired on March 31, 1988 and that his subsequent term as adjunct professor could in no way be construed to extend that date. Her affidavit indicates that Jones received second appointment by agreement between he and the respondent for the period January 2, 1989 to April 19, 1989, this time as Special Lecturer in the Department of Engineering Physics. With regard to Ahern's affidavit, she has no substantial dispute and as to both Jones and Ahern she states that the claim through the Human Rights Commission is being actively pursued. She concludes her affidavit indicating that the Faculty Association's position is not to pursue the claims of retirees until the Supreme Court of Canada renders its decision in the cases previously referred to and stating that there are no faculty positions available for either Jones and Ahern. Jones' former position has become redundant and the Department he was in is closing May 31, 1991. Ahern's vacancy was filled by new employee. should add here that counsel for the applicants advised the Court that the required notice of constitutional issue being raised was given to the Attorney General of Nova Scotia though no one appeared at the hearing on the Attorney General's behalf. Just prior to hearing this application, heard and dismissed last minute application by the respondent to join the Faculty Association as party to these proceedings. This application was dismissed on the grounds that none of the matters of complaint in this action relate to the Faculty Association and the Faculty Association played no role, other than being party to the Collective Agreement, in the events complained of nor would any remedy granted here affect the Faculty Association. This application is an attempt to short‑circuit the anticipated lengthy process under the Nova Scotia Human Rights Act by calling the Charter of Rights and Freedoms into play both to declare the right and grant the specific remedy requested so that, if successful, the applicants could resume work at the beginning of the September 1990 term. At the hearing, there were number of issues presented including not only the existence of the right under the Charter of Rights and Freedoms, but also the retrospectivity of the right determined by the Snider decision, the power of the Court to fashion and award remedy and the particular remedy sought here. Since‑ the first and most essential question was whether or not the Charter applied to these parties, counsel was requested to file further briefs on this particular question, as well as whether the effect of the Snider decision applies retroactively to these particular applicants and, finally whether jurisdiction should be assumed in view of the Nova Scotia Human Rights Act and the complaints of the applicants currently before the Human Rights Commission. It was agreed by counsel that if the Charter were held not to apply that would be fatal to this application. The matters to which the Charter applies are set out in Section 32 of the Charter itself which reads: "32.(l) This Charter applies (a) to the Parliament and Government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province." The British Columbia Court of Appeal in Harrison v. University of British Columbia, supra, in considering this section, states at p. 691: "The institutions to which the Charter applies are specifically confined to the bodies which enact Canadian and provincial law and which govern pursuant to such law. Section 32 goes no further. The implication is that the activities of private persons and institutions are not governed by the Charter. Private conduct remains unfettered." The Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986), 1986 CanLII (SCC), 33 D.L.R. (4th) 174 has determined that the Charter does not apply to the private sector though it left open the question of the extent to which the Charter applies to actions of subordinate bodies created and supported by government. That open question was considered by the British Columbia Court of Appeal in Harrison (and Connell) v. University of British Columbia, supra, which decision is one of the three for which leave to appeal to the Supreme Court of Canada has been granted and, though already argued, is awaiting decision. The present application, is, in my opinion, on all fours with the Harrison case with regard to the application of the Charter to the respondent and, though that case is now awaiting decision by the Supreme Court of Canada, adopt its reasoning. In the Court of Appeal decision, at p. 692, the Court stated: In other words, where the act alleged to infringe the Charter is the act of branch of government as defined in Dolphin Delivery, 'the Charter applies. Where, on the other hand, the impugned act is the act of body other than Parliament, the legislatures or their executives, it will be subject to the Charter to the extent that it bears direct and definable connection to an act of Parliament, the legislatures or their executives, thereby establishing an exercise of governmental power. This result is in accordance with the purpose of the Charter of protecting individual rights against undue infringement by the more powerful state. To permit Parliament, the legislatures or the executive arms of government to avoid the Charter by delegating their functions to, or dictating the conduct of, subsidiary bodies, which are immune from Charter scrutiny, would run counter to that purpose. The state, acting through subsidiary agent, should be equally subject to the Charter as the state acting directly. Viewed thus, the question in this case is whether there is such 'direct and precisely 'defined connection' between the government and the acts of the university alleged to violate the Charter that those acts may be regarded as the exercise of governmental power. That connection might be established if it were found that the government exercises sufficient control over the university that the acts in question should be regarded as the government's acts. The requisite connection might also be found if the act in question was done pursuant to specific delegation of governmental power; in such case, government power would be exercised, and it is that government power which attracts Charter scrutiny. This list is not comprehensive. In other cases, other factors may be relevant to determine whether direct link with government is established." There is no indication in this case that the government is, in any way, delegating functions to avoid the Charter. Applying the control test as did the British Columbia Court, it is clear on the evidence before me, that the government of Nova Scotia does not control the core functions of the University, including its relations with staff. The respondent is creature of statute, not designated as an agency of the Crown. Pursuant to the statute, Technical University of N. S., R.S.N.S., Ch. 463, Ch. 214 as amended, the respondent is governed by Board of Governors. Of the 31 present members of the Board, only are appointed by the Governor‑in‑Council. The Board's duties are set forth in Section 8, which reads: "Duties of Board 8. The Board shall be the controlling body in all matters pertaining to the University, whether administrative or academic and, except as herein otherwise provided, the government, conduct, management and control of the University and of the property, revenue, business and affairs thereof shall be vested in the Board." Section enables the Board to deal with the hiring of all employees, including faculty, and deal with their terms and conditions of employment. Faculty Association has been certified to bargain on behalf of faculty and does so with the Board. Therefore, full control of the respondent is vested in the Board by the Statute. In fact, also, no such control of the respondent by the government is proven here. It was urged upon me that Section 33 of the enabling Act does indicate governmental control. That sections reads: "Public Service Superannuation Act 33.(l) Subject to Section 17, for all purposes of the Pulic Service Superannuation Act the President, the members of the teaching staff and every full‑time employee of the Board shall be deemed to be persons employed in the public service of the Province and such employment shall be deemed to be public service." (emphasis added) The applicants' contention that this creates the degree of governmental control to warrant the application of the Charter is untenable. That section by "deeming" is only bringing employees who are not in the public service within the definitions required to be under that pension plan and such "deeming" is only for the purposes of that Act. There can be no question that the matter of pensions is bargainable item between the respondent and the Faculty Association and the Public Service Superannuation Act is only one option. There could be others. Based upon the history of the faculty, it is understandable why they are tied to that plan as they formerly belonged to it. However, mandatory retirement for the applicants does not stem from that Act. Rather it stems from the Collective Agreement. The Collective Agreement in effect in 1987 provided in Article 28.01, supra, that the normal retirement date was to be on June 30 of the year in which the member attains the age of 65. That agreement changed, for the next agreement provided that the normal retirement date was to be the last day of the month in which faculty member reached 65. As well, it added the words "consistent with the provisions of the Public Service Superannuation Act", which, in my opinion, added nothing to the Article. As result, on any consideration of the evidence, there is no evidence of governmental control that could be regarded as an exercise of government power sufficient to bring the respondent within the application of the Charter. Certainly the private contract, here the Collective Agreement, is not subject to the Charter either. As the Harrison Court stated at p. 696: What is at issue in this case is not an. act directly mandated by government and calculated to affect the public, but the performance of private, consensual act between two parties who, independent of government action, have chosen to assume certain rights and obligations. It cannot be suggested that the greater power of the state is in conflict with the rights of the plaintiff; they entered into the contracts of which they complain of their own free will." In conclusion then, find that the Charter of Rights and Freedoms does not apply to the respondent and the application herein is denied. Even had decided otherwise, would have declined jurisdiction in this application between these parties. This is an action between two private parties and some guidance on this type of situation has been given by the Supreme Court of Canada in Dolphin Delivery, supra. At pp. 595‑597, Maclntyre, J., speaking for the majority, said: More recently, Dubin J.A., speaking for the majority of the Court of Appeal for Ontario (Dubin, Morden JJ.A., Finlayson, J.A. dissenting) in Re Blainey and Ontario Hockey Association (1986), 1986 CanLII 145 (ON CA), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, in case involving claim for discrimination on account of sex, said: 'In my opinion s. 15 of the Charter does not reach private activity within province.' He then expressed agreement with the words of Professor Tarnopolsky (as he then was) in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms Commentary (supra), at pp.422‑23, where he said: 'In our own case under the Charter, it is suggested that s. 15 is not likely to be applied in the courts except in cases where discriminatory act is committed by legislative action, and the jurisdiction concerned does not have an overriding clause in its Human Rights Act, as do Alberta, Quebec and Saskatchewan. This would be so for the following reasons: 1. By s. 32(1), of the Charter is specifically made applicable only to the Parliament and govenment of Canada and to the legislature and government of each province 'in respect of all matters within the authority' of the respective legislative body. Thus, although legislative and executive actions are covered by the Charter, it is not made applicable to private action. 2. Section 15 refers to equality before and under the law, as well as equal protection and benefit of the law. Thus, although an anti‑discrimination (human rights) law would itself have to conform to s. 15, it, and not s. 15, would be directly applicable to discriminatory actions by private persons. 3. Every jurisdiction in Canada has an anti‑discrimination statute which is explicitly made applicable to the Crown. It is unlikely, therefore, that complainant would resort to constitutional action in the courts, rather than the complaint process under the anti‑discrimination laws.' Dubin, J.A. then noted that McNair, J., of the Federal Court, Trial Division, in Cat Productions Ltd. v. Macedo, [1985] F.C. 269, had approved the words of Professor Swinton, at pp. 44‑45 in the Canadian Charter of Rights and Freedoms: Commentary, supra: The automatic response to suggestion that the Charter can apply to private activity, without connection to government, will be that Charter of Rights is designed to bind governments, not private actors. That is the nature of constitutional document: to establish the scope of governmental authority and to set out the terms of the relationship between the citizen and the state and those between the organs of government. The purpose of Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between individuals are left to the regulation of human rights codes, other statutes, and common law remedies, such as libel and slander laws.. Furthermore, s. 32(1) specifically states that the Charter applies to "the Parliament and government of Canada in respect of all matters within the authority of Parliament" (emphasis added). It is governmental action. which is caught, not private action.' Further support for the view that the Charter does not apply in litigation between private parties is to be found in helpful article in (1986), 24 Atla. L. Rev. 361, by Anne McLellan and Bruce P. Elman, entitled, 'To Whom Does the Charter Apply? Some recent cases on s. 32', which reviews the case law as it has developed, and says at p. 367: 'In conclusion it is suggested that the better view is that the Charter applies only to government action. To hold otherwise would be to increase the scope of the Charter immeasurably. In cases involving arrests, detentions, searches and the like, to apply the Charter to purely private action would be tantamount to setting up an alternative tort system. In the area of private discrimination, an entirely new system of civil liability in competition with the dispute resolution mechanisms fostered by human rights legislation would result.' Views to the contrary have been expressed in articles by Dale Gibson: 'The Charter of Rights and the Private Sector' (1982), 12 Man. L.J. 213; 'Distinguishing the Governors from the Governed: The Meaning of "Government" under Section 32(1) of the Charter' (1983), 13 Man. L.J. 505, as well as Morris Manning, Rights, Freedoms and the Courts (Toronto 1983). am in agreement with the view that the Charter does not apply to private litigation. It is evident from the authorities and articles cited above that that approach has been adopted by most judges and commentators who have dealt with this question. In my view, s. 32 of the Charter, specifically dealing with the question of Charter application, is conclusive on this issue. Maclntyre, J. continues at p. 598: It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. It would seem that legisation is the only way in which legislature may infringe guarantee right or freedom. Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority. Such action may also depend, however, on the common law, as in the case of the prerogative. To the extent that it relies on statutory authority which constitutes or results in an infringement of guaranteed right or freedom, the Charter will apply and it will be unconstitutional. The action will also be unconstitutional to the extent that it relies for authority or justification on rule of the common law which constitutes or creates an infringement of Charter right or freedom. In this way the Charter will apply to the common law, whether in public or private litigation. It will apply to the common law, however, only in so far as the common law is the basis of some governmental action which, it is alleged, infringes guaranteed right or freedom." There is Human Rights Act in effect in Nova Scotia. It was in effect at the time of these events and remains so. That part of the Act which would call for constitutional ruling because of the Charter has already been ruled upon in the Snider case, supra, which declared unconstitutional those provisions of the Act which exempted people over 65 from the protection of the Act and struck down the sections of the Act concerned. Thus the constitutionality of the impediments to proceeding under the Human Rights Act by persons aged 65 or over are removed, and persons affected by any rules of mandatory retirement have forum and procedures to assert their claims. Where such exists, as it does in this case, that is the proper forum. Were it not so, there would be duplication of processes, forum shopping and, undoubtedly, lessening of the authority and effectiveness of the procedures under the Human Rights legislation. Human rights, only recently brought to the fore, in the legal sense, by the passage of legislation, is obviously an area which requires supervision to assure that the rights created by legislation are meaningful and attained. This is best accomplished by specialist board which is regularly available to anyone who has claim to assert. As with other administrative tribunals, such board is better able to deal, on daily basis, with the matters within its jurisdiction. It, however, is always subject to the general supervision of superior Court. The Nova Scotia Human Rights Commission is the proper forum for human rights disputes between private parties and therefore, is the proper forum for this dispute. The parties have already invoked its jurisdiction and should remain with it. As in any such case, if the Board is in error there are procedures to correct such error. Just because particular claimant may feel the Board's procedures are slow or cumbersome, or, because of one's particular interest to have decision before particular date, as here, that does not constitute grounds to bypass the body handling human rights complaints and invoke the application of the Charter in the Courts. Had not found the Charter inapplicable to this private dispute, would have declined jurisdiction for the foregoing reasons relating to the Charter and private persons disputes and the availability and propriety of an alternate forum. The third issue addressed was referred to as the retrospective effect of the Charter in the Snider's decision. In view of my findings so far it may be unnecessary to deal with this issue. However, think it appropriate, in view of the circumstances here, to express some views on this issue. There is very little authority on this particular point. It can be said that the general approach to legislation is that it is prospective in effect though, it can be made retrospective if clearly done in the legislation itself. It can also be said that the Charter of Rights and Freedoms is not retrospective or retroactive in its operation in the sense that it does not change the law that was in effect prior to its coming into force. The same can be said of Section 15 of the Charter which did not come into force until years later. The problem presented here is that with Section 15(1) of the Charter coming into force in 1985, discrimination based upon age was legislated to be unconstitutional yet the Nova Scotia Human Rights Act precluded anyone 65 or over from having the complaint process available. The Snider decision of the Nova Scotia Court of Appeal, filed December 16, 1988 declared the sections of the Human Rights Act to that effect were unconstitutional. The question then becomes is the effect of the Snider decision retroactive to the coming into effect of Section 15(1) of the Charter or, put another way, was mandatory retirement based upon age discriminatory practice in Nova Scotia since Section 15(1) of the Charter came into effect despite the fact that the Nova Scotia Human Rights Act provided no forum for complaints. There can only be one answer to this question and that is the age discrimination was unconstitutional from the time Section 15 of the Charter came into effect. The Snider decision was merely the first opportunity to declare it so. This is not to say that any law declared unconstitutional was unconstitutional back to the time the Charter came into effect or that anyone affected by declaration of unconstitutionality would have right to remedy for that period or that other rights, privileges or relationships lawful at the time would be altered. However, Section 15(1) is specifically declaratory section stating the status of every Canadian citizen before and under the law and guaranteeing certain rights both in general and specific manner. Those rights existed from the moment that Section came into force and exist despite any legislation to the contrary that may have been in effect. Obviously this creates problem in broad social sense particularly in the area of mandatory retirement. Presumably many were mandatorily retired between 1985 and the date of the Snider decision. Presumably many accepted their state and again, presumably, there were those who tried to complain to the Human Rights Commission who were told they had no complaint. Also, most employers involved would say they acted in good faith in accordance with the existing Nova Scotia Legislation. Should there be number of claimants now who were mandatorily retired solely on the basis of age, there could be an equal number of employers whose affairs might be quite upset if all were reinstated in their employment. The fact is that basic rights existed and some people were deprived of them and that deprivation, if asserted, would require remedy. That remedy would not and should not necessarily be the same for all claimants and, indeed, for the period prior to Snider in any event, should not necessarily be full reinstatement with back pay, subject of course to any set‑off, to the date of retirement. Each case would have to be considered on its own facts as to remedy. Reinstatement is only one, remedy. Damages is another. In determining an appropriate remedy, all the usual factors taken into account by court in constructing remedy, should be taken into account by the Human Rights Commission. Indeed, in the present case, there appears to be quite significant differences in the facts to be considered when constructing remedy between Jones and Ahern, the applicants herein. Considering each claim and constructing appropriate remedies are well within the capabilities of the Human Rights Commission and its current remedial procedures seem best suited to the manner of handling complaints regarding alleged violations of human rights legislation. That is further supportive reason for my earlier indication that the proper forum for human rights complaints is the Human Rights Commission. In conclusion, this Application is denied. However, in view of the fact that constitutional issues were raised here, in an area in which there is still uncertainty, until the Supreme Court of. Canada renders its decision regarding the application of the Charter to Universities, and considering that this is claim to rights which have been denied and to the fact that the effect of the Snider case required determination, do not feel it appropriate to make an award of costs against the applicants. Therefore, each party shall bear its own costs. Halifax, Nova Scotia November 2, 1990 1990 S.H. No. 71965 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HUGH JONES and WILLIAM AHERN and TECHNICAL UNIVERSITY OF NOVA SCOTIA
This was an application under the Charter of Rights and Freedoms for an order declaring that the mandatory retirement of the two appellant university professors was invalid and denied the rights of the appellants as guaranteed under ss. 15(1) and (7) of the Charter, and an order for reinstatement and back pay. Dismissing the application, that (1) pursuant to s. 32 of the Charter, the Charter did not apply to these employees since the university was not a subordinate body of government, and was not being controlled by government, but was an independent institution; the fact that the university's governing statute provided that teaching staff were 'deemed to be persons employed in the public service of the Province' for the purposes of their pension plan did not constitute governmental control such as to warrant the application of the Charter; and (2) the proper forum for this application was the Human Rights Commission. The court also considered the retroactive effect of the Nova Scotia decision in Sniders v. Nova Scotia (Attorney General), which struck down the provision in the Nova Scotia Human Rights Act precluding anyone 65 years or over from making an age discrimination complaint. The court concluded that the Sniders decision did have a retroactive effect to the date when s. 15 of the Charter came into force.