View cases - Stewart McKelvey

constitutionally protected right, the need for certainty in pension plans, the link between age anddeclining health, as well as the arguments relating to the balancing of competing interests and mattersof social policy, would all have to be taken into account by the Tribunal in determining whether thestatutory provision is saved by section 1 of the Charter.[332] At the same time, the Tribunal would also have to have regard to matters such as evolvingsocietal attitudes with respect to age discrimination, including the fact that a number of Canadianprovinces have now outlawed mandatory retirement, in determining whether there is still a pressingand substantial legislative objective behind the legislation: see also the discussion regarding issuessuch as this in Assn. of Justices of the Peace of Ontario, previously cited, at paragraphs 33 to 45, andin Greater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District,2001 BCCA 435, 206 D.L.R. (4th) 220, at paragraph 127.[333] The evidence provided by Dr. Kesselman as to the negative effects of mandatory retirement,and the limited fallout that has resulted from the abolition of mandatory retirement in a number ofjurisdictions would also have to be addressed in relation to the section 1 issue. So too would otherconsiderations, such as the extent to which improvements in fitness testing have obviated the need foracross-the-board safety-related retirement rules.2009 FC 367 (CanLII)(d) Conclusion with respect to the subsection 15(1) Charter issue[334] The effect of the Supreme Court of Canada’s decisions in Andrews, Law and Kapp is that tosucceed in a claim under subsection 15(1) of the Charter, it will not be enough for a claimant to showthat he or she is not receiving equal treatment before and under the law, or that the law has adifferential impact on him or her in the protection or benefits accorded by the law in question.[335] A claimant must also be able to show that the legislative impact of the law is discriminatory.Two questions must be addressed in determining whether the impact of a law is discriminatory: first,does the law create a distinction based on an enumerated or analogous ground; and second, does thedistinction create a disadvantage by perpetuating prejudice or stereotyping: see Ermineskin IndianBand and Nation, previously cited, at paragraph 188.[336] Regard must be had to the “particular traits and circumstances” of the individual claimant, aswell as to “the larger context of the legislation in question, and society’s past and present treatment ofthe claimant and of other persons or groups with similar characteristics or circumstances”: Law, atparagraph 59.[337] Paragraph 15(1)(c) of the Canadian Human Rights Act denies older workers such as Messrs.Vilven and Kelly the equal protection of the law that has been described by the Supreme Court ofCanada as “the final refuge of the disadvantaged and the disenfranchised”: Zurich Insurance Co.,previously cited, at page 339.[338] In so doing, paragraph 15(1)(c) of the Act has the effect of perpetuating the groupdisadvantage and prejudice faced by older workers in this country. Viewed both objectively, andfrom the subjective perspective of Messrs. Vilven and Kelly, the statutory provision promotes theperception that older workers such as Messrs. Vilven and Kelly are less worthy and less deserving ofthe equal protection of the law than are younger workers who lose their jobs for age-related reasons atan age below the normal age of retirement for a particular type of position.[339] Moreover, the statutory provision can only serve to perpetuate the stereotypical view thatolder workers are less capable, or are less deserving of recognition or value as human beings or asmembers of Canadian society. As a consequence, I find that paragraph 15(1)(c) of the CanadianHuman Rights Act violates subsection 15(1) of the Charter.IX. Disposition