View cases - Stewart McKelvey

Page: 7[26] In advance of the Tribunal hearing, the Fly Past 60 Coalition served a Notice ofConstitutional Question on the federal and provincial Attorneys General, advising that theconstitutionality of paragraph 15(1)(c) of the CHRA was in issue in the proceeding. As was notedearlier, paragraph 15(1)(c) of the Act provides that it is not a discriminatory practice if anindividual’s employment is terminated “because that individual has reached the normal age ofretirement for employees working in positions similar to the position of that individual”.[27] In a decision rendered in August of 2007, the Tribunal dismissed Messrs. Vilven and2011 FC 120 (CanLII)Kelly’s human rights complaints: Vilven v. Air Canada; Kelly v. Air Canada and Air Canada PilotsAssociation, 2007 CHRT 36 (Tribunal decision #1). The Tribunal found that 60 was the normal ageof retirement for persons working in similar positions, and further found that paragraph 15(1)(c) ofthe Act did not contravene subsection 15(1) of the Charter. Because of its finding on the section 15Charter issue, the Tribunal did not have to decide whether paragraph 15(1)(c) of the CHRA couldbe justified under section 1 of the Charter.[28] On judicial review, I found that although there were errors in the Tribunal’s analysis, thefinding that 60 was the normal age of retirement for individuals employed in positions similar tothose occupied by Messrs. Vilven and Kelly prior to their retirement was reasonable: Vilven #1 atpara. 174.[29] However, as noted earlier, I concluded that paragraph 15(1)(c) of the Act violatedsubsection 15(1) of the Charter, as it denies the equal protection and equal benefit of the law toworkers over the normal age of retirement for similar positions. Consequently, I quashed the