View cases - Stewart McKelvey

Page: 15[57] In restoring the decision of the Board of Inquiry, the Supreme Court found that the evidenceadduced by the employer failed to establish that being under 60 was a bona fide occupationalrequirement. The Court observed that everyone ages chronologically at the same rate, but thatindividuals may age in a “functional sense” at very different and largely unpredictable rates. TheCourt went on to observe that in cases where the employer's concern is one of productivity ratherthan safety, “it may be difficult, if not impossible, to demonstrate that a mandatory retirement at afixed age, without regard to individual capacity, may be validly imposed under the Code”: at p. 209.2011 FC 120 (CanLII)[58] The Court rejected the employer’s argument that the mandatory retirement age at issueshould be considered to be a bona fide occupational requirement as it had been agreed to as part of acollective agreement: at p. 212. As the Code had been enacted for the benefit of both the communityat large and of its individual members, the Supreme Court was of the view that its protection couldnot be waived or varied by private contract: at pp. 213-214.ii)McKinney v. University of Guelph[59] The issue of mandatory retirement was back before the Supreme Court in the early 1990’s ina series of cases brought under section 15 of the Charter: McKinney; Harrison; Stoffman; DouglasKwantlen Faculty Assn. v. Douglas College [1990] S.C.J. No. 124; [1990] 3 S.C.R. 570.[60] The judgments in all four cases were rendered at the same time, with McKinney as the leaddecision. Air Canada and ACPA argue that McKinney was binding on the Tribunal, and should havedictated a finding by the Tribunal that paragraph 15(1)(c) of the CHRA was saved by section 1 of