View cases - Stewart McKelvey

have been infringed only by considering the larger context of the legislation in question, and society’spast and present treatment of the claimant and of other persons or groups with similar characteristicsor circumstances”: Law, at paragraph 59.[252] The Tribunal found that, although paragraph 15(1)(c) of the Canadian Human Rights Act wasworded differently than the provision of the Ontario Human Rights Code, 1981 at issue in McKinney,the two provisions were comparable as both exempt mandatory retirement policies from conduct thatwould otherwise amount to prima facie age discrimination. As I understand the Tribunal’s reasons,the Tribunal accepted that paragraph 15(1)(c) of the Canadian Human Rights Act makes an age-baseddistinction, which deprived Messrs. Vilven and Kelly of the ability to challenge Air Canada’smandatory retirement policy.[253] Neither Air Canada nor ACPA have challenged this finding. Indeed, ACPA acknowledged inits oral submissions that there was no material difference between paragraph 15(1)(c) of the CHRAand the provision of the Ontario Human Rights Code, 1981 at issue in McKinney. As a consequence, Iwill deal only briefly with this issue.2009 FC 367 (CanLII)[254] Equality is inherently a comparative concept. As a consequence, in order to determinewhether there has been a breach of subsection 15(1) of the Charter, it is necessary to first identifyspecific personal characteristics or circumstances of the claimant, and compare the treatment of thatindividual to the treatment accorded to a relevant comparator. This comparison will assist indetermining whether the claimant has experienced differential treatment, which is the first step indetermining whether there has been a violation of subsection 15(1) of the Charter: see Law, atparagraph 24.[255] Insofar as the choice of comparator is concerned, the Supreme Court stated in Auton(Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657,that the comparator group (at paragraph 53):... should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought,except for the personal characteristic related to the enumerated or analogous ground raised as the basis for thediscrimination …. The comparator must align with both the benefit and the “universe of people potentiallyentitled” to it and the alleged ground of discrimination ....[256] In Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3S.C.R. 357, the Court reiterated that the appropriate comparator group will be the one which mirrorsthe characteristics of the claimant or claimant group relevant to the benefit or advantage sought, withthe exception “that the statutory definition includes a personal characteristic that is offensive to theCharter or omits a personal characteristic in a way that is offensive to the Charter”: at paragraph 23.[257] The relevant comparison in this case is to be made between older workers such as Messrs.Vilven and Kelly, who exceed the normal age of retirement for their type of position, and youngerworkers occupying similar positions who have not yet reached the normal age of retirement: seeStevenson, previously cited, at paragraph 24, where the Federal Court of Appeal described thedistinction drawn by the predecessor to paragraph 15(1)(c) of the Act as being “between persons whohave reached the normal age of retirement and younger employees in the same class who have notreached that age.”[258] Unlike the provision of the Ontario Human Rights Code, 1981 at issue in McKinney,paragraph 15(1)(c) of the Canadian Human Rights Act does not stipulate a specific age beyond whichthe protection of the Act will not be available. Rather the reference is to the “normal age ofretirement” as the relevant demarcation point.[259] Thus, in McKinney, workers under age 65 could claim the protection of the Code in relationto claims of age discrimination, whereas those over 65 could not. In this case, the differential