View cases - Stewart McKelvey

[51] The Tribunal found that complete data was available for 10 major international airlines,collectively employing some 25 308 pilots. During the 2003–2005 period, 80% of pilots working forthese airlines were required to retire at age 60 or younger. This led the Tribunal to conclude that 60was the retirement age for the majority of positions similar to those of Messrs. Vilven and Kelly, andwas thus the “normal age of retirement” for the purposes of paragraph 15(1)(c) of the CanadianHuman Rights Act.[52] As a result, the Tribunal found that Air Canada’s mandatory retirement policy did not amountto a discriminatory practice within the meaning of the Act.[53] The Tribunal then turned to consider whether paragraph 15(1)(c) of the Canadian HumanRights Act violated subsection 15(1) of the Charter, which provides that “[e]very individual is equalbefore and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on … age”.[54] The Tribunal started its analysis with a consideration of the Supreme Court of Canada’sdecisions in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 and Harrison v. University ofBritish Columbia, [1990] 3 S.C.R. 451. The Tribunal noted that in McKinney, the Supreme Court haddetermined that a statutory provision very similar to paragraph 15(1)(c) of the Canadian HumanRights Act, namely paragraph 9(a) of the Ontario Human Rights Code, 1981 [S.O. 1981, c. 53],violated subsection 15(1) of the Charter, as it deprived individuals of a benefit under the Code on thebasis of an enumerated ground.2009 FC 367 (CanLII)[55] The Tribunal went on to observe that at the time that McKinney was decided, considerationsregarding the nature and scope of rights under subsection 15(1) were dealt with under section 1 of theCharter. Citing the Supreme Court’s intervening decisions in Law v. Canada (Minister ofEmployment and Immigration), [1999] 1 S.C.R. 497 and Gosselin v. Quebec (Attorney General),2002 SCC 84, [2002] 4 S.C.R. 429, the Tribunal found that the law regarding the analysis ofdiscrimination claims under subsection 15(1) of the Charter had evolved since McKinney wasdecided.[56] After reviewing this jurisprudence, the Tribunal identified the question to be answered indetermining whether paragraph 15(1)(c) of the Canadian Human Rights Act violated subsection 15(1)of the Charter as being “whether, as a result of the age-based distinction in s. 15(1)(c) of the CHRA,the complainants’ dignity was affronted or they experienced negative stereotyping relating to theirage” [at paragraph 89].[57] The Tribunal concluded that although paragraph 15(1)(c) of the Act deprived Messrs. Vilvenand Kelly of the opportunity to challenge the mandatory retirement policy in their workplace, the lossof this opportunity did not violate their dignity, or fail to recognize them as full and equal members ofsociety. As a consequence, the Charter challenge was also dismissed.V. Issues[58] These applications for judicial review raise the following issues:1. Did the Tribunal err in defining the “normal age of retirement” for employees working inpositions similar to those occupied by Messrs. Vilven and Kelly by:a. Mischaracterizing the essential features of their positions? andb. Choosing an inappropriate comparator group?2. Is a binding rule required for there to be a “normal age of retirement” for the purposes ofparagraph 15(1)(c) of the Canadian Human Rights Act ?