Canada v. Canada ( Human Rights Commission )
A-198-94
MacGuigan J.A.
19/12/95
11 pp.
Appeal from Trial Division order allowing application for judicial review of Canadian Human Rights Tribunal (CHRT) decision and referring 56 complaints back to different panel of CHRT for rehearing-Executive Flight Service (EFS) of Department of Transport (DOT) transferred from DOT to Department of National Defence (DND)-Pilots employed by EFS could not be transferred to DND because of mandatory retirement age of 55 in Armed Forces-Complaints under Human Rights Act alleged discrimination on basis of age-CHRT dismissed complaints-Decision set aside by Trial Division-Appeal dismissed-Principal issues whether direct discrimination with respect to age under s. 7 or indirect discrimination under s. 10-Tribunal's decision cannot be rationally supported-As to direct discrimination, Tribunal committed errors in reviewing evidence and apparently disregarded totality of material before it on question of age as concern in implementation of decision to transfer EFS from DOT to DND-Tribunal also erred in saying age not proximate cause as thereby imported notion of proximate cause, notion having no relevance under Act-As to indirect discrimination, Tribunal handled evidence in same inappropriate manner and erred in examining decision to transfer rather than implementation thereof as possible source of discrimination-Also failed to explore issue of indirect discrimination on basis no "policy"-Although decision herein technically one-time decision, its effects same as general employment rule or practice-Proper exercise of judicial discretion by Trial Judge to return matter to differently constituted Tribunal-In addition, matter should be reconsidered on same record, without adducing additional evidence-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10.