View cases - Stewart McKelvey

Page: 47the conclusion that the infringement in McKinney was justified under s. 1 of the Charter solely onthe ground that this was the normal age of retirement, one cannot conclude that that factor alonewould suffice in all cases to justify an infringement of s. 15”: at para. 106.[183] Justices McLachlin and L’Heureux-Dubé held that section 1 “is about much more than whatis usual or ‘normal’”. They were of the view that a usual practice “may be unjustifiable, havingregard to the egregiousness of the infringement or the insubstantiality of the objective alleged tosupport it”. As a result, each case had to be examined in light of its own circumstances: at para. 106.2011 FC 120 (CanLII)[184] Consequently, the dissenting judges found that the Commission had erred in concluding thatMcKinney presented a complete answer to Messrs. Bell and Cooper’s human rights complaints.[185] It is thus clear that for at least two judges of the Supreme Court, the decision in McKinneydoes not provide a complete answer to a challenge to the constitutional validity of paragraph15(1)(c) of the CHRA.C. Is Paragraph 15(1)(c) of the CHRA Justifiable Under Section 1 of the Charter?[186] Having thus determined that McKinney does not provide a complete answer to Messrs.Vilven and Kelly’s Charter challenge, the question for this Court is whether the Tribunal’s findingthat paragraph 15(1)(c) of the CHRA is not saved by section 1 of the Charter is correct.