Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether Okanagan College's LTD Plan excluding employees over age 65 was a bona fide plan under the Human Rights Code.

• The arbitrator concluded the denial of benefits post-65 constituted age discrimination not exempted by a bona fide plan clause.

• Arbitrator applied the Potash test, assessing both the legitimacy and purpose behind the LTD Plan, including evolving employment norms post-2008.

• Court of Appeal held it lacked jurisdiction under s. 100 of the Labour Relations Code, as the case involved application of law to specific labour facts.

• Appeal was framed as an issue of general law, but the Court found it was a factual dispute grounded in collective bargaining history.

• Employer’s argument that arbitrator misapplied legal tests did not override the factual basis of the award.

Facts and Background

Okanagan College and its Faculty Association were in a longstanding dispute over the denial of long-term disability (LTD) benefits to employees aged 65 and older. The matter arose after a 2008 amendment to the Human Rights Code removed the mandatory retirement age, leading to concerns about whether age-based exclusions in employee benefits plans remained lawful. The Faculty Association filed a grievance, asserting that the College’s LTD plan violated age discrimination protections under the Code.

The arbitration was bifurcated into two phases. The first addressed whether the collective agreement required LTD benefits beyond age 65, and the second examined if the exclusion of those benefits constituted discrimination, and whether the LTD plan could be considered a bona fide group insurance plan under s. 13(3)(b) of the Human Rights Code. The arbitrator concluded that while the plan was initially legitimate and adopted in good faith, the employer’s continued enforcement of the age cap, despite evolving legal and employment norms, rendered the plan non-bona fide in its current form.

The Arbitration Decision

In determining whether the LTD Plan was bona fide, the arbitrator relied on the Supreme Court’s decision in New Brunswick (Human Rights Commission) v. Potash Corporation, which provided a legal test incorporating both subjective and objective components. According to this test, a plan must not only be adopted in good faith but must also not be aimed at defeating protected rights.

The arbitrator found that Okanagan College’s initial belief in the legitimacy of the LTD Plan could no longer be sustained, particularly in the post-2008 environment where insurance markets had adapted to non-mandatory retirement. The employer was aware of the discriminatory nature of continuing the age cap and failed to justify its continuation with up-to-date evidence. Therefore, the LTD Plan was deemed to fall short of the bona fide exemption under the Human Rights Code.

The Appeal

Okanagan College appealed the arbitrator’s decision, claiming that the arbitrator had misapplied the Potash test and improperly incorporated a reasonableness standard that reflected a dissenting view rather than the majority judgment. The College also argued that the arbitrator’s inclusion of Charter values analysis added legal complexity, transforming the issue into a matter of general law that warranted the Court of Appeal’s jurisdiction under s. 100 of the Labour Relations Code.

Jurisdictional Analysis

The British Columbia Court of Appeal emphasized that under s. 100, it only has jurisdiction to review arbitration awards if the matter is one of general law and unrelated to a collective agreement, labour relations, or related factual determinations. The Court concluded that although the appeal raised a legal issue, the arbitrator’s decision was ultimately grounded in factual findings about the parties’ collective bargaining history and the employer’s intentions in maintaining the plan.

Citing established jurisprudence, the Court underscored that it does not have jurisdiction to hear appeals rooted in the application of well-settled legal tests to factual circumstances within the labour relations context. Consequently, the Court determined that the real basis of the award was factual and thus fell within the Labour Relations Board’s jurisdiction under s. 99 of the Labour Relations Code.

Outcome

The Court of Appeal quashed the appeal for want of jurisdiction. It found that the arbitrator’s decision was based on a factual evaluation of the LTD Plan’s legitimacy in the context of a longstanding collective bargaining relationship, not a pure question of law. The Court declined to award increased costs to the Faculty Association, noting that the employer’s concurrent filing with the Labour Relations Board, though duplicative, did not rise to the level of unreasonable conduct.