Olmstead v. Canada ( Attorney General )
T-126-98
Hargrave P.
10/9/98
13 pp.
Portions of statement of defence on grounds disclosing no reasonable defence, res judicata by reason of issue estoppel-Plaintiff forcibly retired in 1995, at age 56, from Canadian Armed Forces-In 1994 filing complaint with Canadian Human Rights Commission (CHRC), alleging age discrimination contrary to Charter, s. 7-Complaint held in abeyance pending outcome in Martin case-In Martin v. Canada (Department of National Defence) (1992), 17 C.H.R.R. D/435; affd Canada (Attorney General) v. Martin, [1994] 2 F.C. 524 (T.D.); affd. (1997), 146 D.L.R. (4th) 380 (F.C.A.), Canadian Human Rights Tribunal finding mandatory retirement policy discriminatory practice as not bona fide occupational requirement-Meanwhile in 1992 Queen's Regulations and Orders (QR & O) amended with addition of Art. 15.17(10), deeming that Article to be regulation for purposes of Human Rights Act, s. 15(b)-S. 15(b) providing not discriminatory practice if employment terminated because person reaching maximum age under regulations made by Governor in Council for purposes of coming within that section-Plaintiff's action appealing CHRC dismissal of complaint on grounds employment properly terminated under QR & O amendment bringing termination by reason of age within shelter of Human Rights Act, s. 15(b)-Plaintiff submitting s. 15(b) contrary to Charter, s. 15-To strike out pleading, plaintiff must show, beyond doubt, plea will not succeed-Also, mere surplus statement, from which no prejudice flowing, ought not to be struck out-Para. 6 alleging plaintiff's Charter rights not infringed by operation of QR & O struck out as going beyond mere surplus-Para. 15 purporting to compare retirement ages in other western armed forces, and para. 16, in which defendant submitting members of military able to retire at younger ages with financial security, struck out as disclosing no reasonable defence, and will delay trial, abusing process of Court-Test for issue estoppel set out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.)-Definition approved in Angle v. M.N.R., [1975] 2 S.C.R. 248, with additional provision estoppel must be based upon question fundamental to decision in earlier proceeding-Martin deciding whether retirement provision at issue within Human Rights Act, s. 15(a) as bona fide occupational requirement-That some matters appear to have been decided in Martin litigation not now relevant for, to extent touching upon s. 15(b), not essential to foundation or groundwork of decision in Martin-Doubtful parties to present litigation in both instances privies of parties to Martin proceeding-Dispute not amenable to summary determination as question of law unless parties able to either produce statement of agreed facts or at least come much closer in views as to what conclusions Court ought to draw as to facts, from pleadings-Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.