[CHARLOTTETOWN, PE] — A supreme court judge has ordered the P.E.I. Human Rights Commission to re-consider parts of its ruling on forced retirement at UPEI after it made several errors in its decision.
In his decision on a judicial review, Justice Ben Taylor upheld most of the panel’s ruling but agreed with UPEI that the employees had a duty to lessen their damages by looking for work.
Taylor issued the judgment Feb. 3 after a judicial review of the human rights commission’s ruling that UPEI discriminated against three employees when it forced them to retire at age 65.
Those employees were Thomy Nilsson, Richard Wills and Yogi Fell.
The review addressed seven issues in which the university argued the panel erred in rulings dating back to February and June 2010.
Taylor said if the employees had applied to several employers and even if they had been turned down it probably would have satisfied the duty to lessen their losses.
Only one of the employees applied for work after he was forced to retire.
Thomy Nilson applied for one part-time job he could do online, but didn’t get it and didn’t apply for any others.
Wills worked on a 10-volume study on human behaviour after retirement and the university argued he could have applied for a post-retirement research grant, although Taylor said the final cost to UPEI would have been the same.
Fell has been working on a non-profit horse sanctuary she runs and has been having trouble making ends meet.
Taylor ruled the employees’ decision to not seek employment wasn’t just risky, but might also have gone against the legal principle of protecting and conserving the economic welfare and prosperity of the whole community.
He went on to say Wills and Fell might have satisfied the societal reasons because they were active and productive after retiring.
In its decision, the panel ruled the employees didn’t have a duty to look for work outside their home communities because of their ages and the fact local job opportunities would have been rare or non-existent.
Although the university said Wills and Nilsson could have potentially found work as sessional instructors, the panel ruled it was unreasonable to expect them to work at UPEI while they were in a dispute with the university.
But Taylor disagreed and said that ruling discriminates in favour of the employees based on their age and a younger person would be expected to look for work at least within the Maritimes.
Taylor also said the panel didn’t find UPEI acted out of malice in forcing the retirements and sessional work wouldn’t have forced the professors into working for a hated employer because the complaint’s goal was to get their jobs back.
If the employees had lost they would have thrown away any opportunity to earn any income in the meantime, Taylor said.
“It looks like they took an all or nothing approach.”
In sending the decision back to the panel for review, Taylor said it should consider whether or not the employees would have likely found jobs if they had looked.
Taylor also said the panel should consider the availability of sessional lecturing positions and determine if Wills or Nilsson might have been able to get any.
Because the employees should have been looking for work while they fought their case it meant the panel should consider part-time or temporary jobs and related but not necessarily identical work, Taylor said.
“It would make no sense to restrict the search to full-time positions matching their previous work in qualifications, duties and pay.”
Taylor upheld the panel’s rulings on the university’s other requests related to costs and didn’t award costs to either party because it was a divided ruling.
