Jo-Ann R. Kolmes

On an appeal from judicial review proceedings, the court considered the standard of review applicable to a labour arbitrator’s interpretation of a collective agreement governing hiring hall dispatches in the construction industry.

The arbitrator had concluded that dispatch and name-hire provisions limited the employer’s otherwise broad management right to hire and select workers, and that the employer breached the agreement by refusing to employ a properly dispatched, qualified union member who had not been terminated for cause.

The court held that the appropriate standard of review was reasonableness, determined through the pragmatic and functional approach, and that the certiorari language in the governing statute did not displace that analysis.

Applying reasonableness, the court found the arbitrator’s interpretation rational and within the range of acceptable outcomes, restored the award, and granted costs to the union throughout.

The appellants challenged Alberta human rights legislation that omitted sexual orientation from the prohibited grounds of discrimination after a dismissed employee was denied access to the provincial human rights complaint process.

The Court held that the Charter applies to underinclusive legislation and that the omission created a discriminatory denial of the equal benefit and protection of the law contrary to s. 15(1).

The respondents failed to justify the omission under s. 1, including at the pressing and substantial objective stage of the Oakes analysis.

Applying Schachter, the Court held that reading in “sexual orientation” to the impugned provisions was the appropriate remedy.

The appeal was allowed and the cross-appeal dismissed with costs.

The appellant challenged a university policy requiring retirement at age 65 as age discrimination contrary to provincial human rights legislation.

The majority held that, although the policy was prima facie discriminatory, the employer established that the practice was reasonable and justifiable under the statutory defence because it furthered tenure, academic renewal, planning, and retirement objectives, and no obvious less impairing alternative would achieve the same results in the university context.

The Court also held that the statutory appeal scheme permitted appellate courts to reassess the factual record without the usual curial deference to the board of inquiry or reviewing judge.

The dissent would have applied a stricter human rights standard, given deference to the board's factual findings, and held the policy unjustified.