View cases - Stewart McKelvey

Page: 9question. It also requires that there be proportionality between the objectives and the effects”:Tribunal decision #2 at para. 12, citing Oakes at para. 70.[34] The Tribunal recognized that in cases such as McKinney v. University of Guelph, [1990] 3S.C.R. 229, [1990] S.C.J. No. 122, and Harrison v. University of British Columbia, [1990] 3 S.C.R.451, [1990] S.C.J. No. 123, the Supreme Court of Canada had found that provisions in the Ontarioand British Columbia human rights codes limiting the protection of the legislation to those under 65were reasonable limitations within the meaning of section 1 of the Charter.2011 FC 120 (CanLII)[35] The Tribunal also noted that the majority judgment in McKinney accorded a high degree ofdeference to the Legislature, as the issue of mandatory retirement involved a complex balancing ofcompeting interests upon which expert opinion was divided. The Tribunal went on, however, toobserve that several more recent decisions had determined that the social and economic context hadchanged sufficiently since McKinney and Harrison were decided as to render those decisions nolonger applicable to present day circumstances: Tribunal decision #2, at paras. 18 and 19.[36] The Tribunal compared the factual and social context of this case to that which was beforethe Supreme Court in McKinney, finding that the evidence before it demonstrated that mandatoryretirement was no longer as prevalent as it had been when McKinney was decided. At the time ofthe hearing, only three provinces allowed for the imposition of mandatory retirement. In all of theother provinces, mandatory retirement was either prohibited, or was permitted only where it wasbased on a bona fide occupational requirement or bona fide pension or retirement plan: Tribunaldecision #2, at paras. 26 and 27.