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Way v. New Brunswick (Department of Education)1
Human rights - Age discrimination - Whether mandatory retirement policy for school bus drivers discriminatory - Prima facie discrimination - Meiorin test for justification of differential treatment - Education Act (N.B.) Reg. 2001-51 - Human Rights Act (N.B.)
The New Brunswick Labour and Employment Board (the "Board") found that the New Brunswick Department of Education and School District 10 (jointly the "Department") discriminated against Mr. Leonard Way when it terminated his employment in December 2006. The Department terminated Mr. Way in accordance with New Brunswick's legislated mandatory retirement policy requiring all school bus drivers in the province to retire at age 65.
School District 10 had continuously employed Mr. Way as a bus driver since 1989. On December 14, 2006, the Department informed Mr. Way that he would have to retire upon reaching the age of 65 on December 30, 2006. New Brunswick's mandatory retirement policy for all bus drivers is provided under Education Act Regulation 2000-51, s. 10(l)(d), which states "no person shall drive any school vehicle, which, includes a school bus, unless the person is not less than 21 years and not more than 65 years of age."
Mr. Way filed a complaint with the New Brunswick Human Rights Commission (the "Commission") alleging the Department discriminated against him on the basis of age. The Commission represented Mr. Way at the hearing before the Board. In order to demonstrate the Department contravened the New Brunswick Human Rights Act2 (the "Act") in terminating Mr. Way, the Commission had to first prove that the mandatory retirement policy was prima facie discriminatory. A prima facie case of discrimination means that if the allegations aie believed, they are sufficient to justify a finding of discrimination absent an explanation from the employer.3 This is not a high standard. In this case, the Board had only to be satisfied that Mr. Way experienced adverse treatment in relation to others, and that this adverse treatment was based on a prohibited ground of discrimination listed in the Act.
The Commission argued that the Department forced Mr. Way to retire from his position as a school bus driver solely on the basis of age, which is a prohibited ground of discrimination under the Act. The...