View cases - Stewart McKelvey

Page: 24[93] With this in mind, Justice Cory examined whether the objectives of promoting tenure,academic renewal, planning and resource management, and retirement with dignity justified theplacing of age limits on the substantive rights to equal treatment: at para. 33. The evidenceregarding the role of mandatory retirement in this context was very similar to that which was beforethe Court in McKinney, and the majority concluded that the mandatory retirement policy wasreasonable and justifiable.[94] Justices L’Heureux-Dubé and McLachlin dissented, finding the university’s mandatory2011 FC 120 (CanLII)retirement policy to be neither reasonable nor justifiable. Given that parties generally cannotcontract out of human rights legislation, the dissenting judges were of the view that the fact that themandatory retirement requirement was found in a collective agreement was not evidence of thereasonableness of the discriminatory practice in Dr. Dickason’s case. While accepting that thiscould be a factor to consider in exceptional circumstances, the collective agreement wouldnevertheless have to be carefully scrutinized in order to ensure that it was truly freely negotiated,and did not discriminate unfairly against a minority of the union membership: at para. 118.[95] Justice Sopinka concurred with Justices L’Heureux-Dubé and McLachlin, holding that Dr.Dickason’s appeal should be allowed on the basis that the Board of Inquiry had found only a weakconnection between the University’s objective and its mandatory retirement policy. The Board hadalso found that there were other, more reasonable ways for the University to achieve its objectives,and that no valid reason for disturbing these factual findings had been demonstrated.