View cases - Stewart McKelvey

Page: 16the Charter. By failing to follow McKinney, the applicants say that the Tribunal erred in law. Inlight of this argument, it is necessary to examine the Court’s reasoning in McKinney in some detail.[61] The appellants in McKinney were university professors at four Ontario universities whowere forced to retire at age 65, in accordance with the universities’ mandatory retirement policies.As in the present case, the professors were unable to seek recourse under human rights legislation,because subsection 9(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, limited theprotection against age discrimination in employment afforded by the Code to those between the2011 FC 120 (CanLII)ages of 18 and 65.[62] The majority judgment held that universities do not form part of “government”, and that thereach of the Charter is limited to government action. However, the Court went on in obiter toexamine the universities’ retirement policies on the assumption that the universities weregovernment actors, finding them to be justifiable.[63] Insofar as the constitutionality of subsection 9(a) of the Ontario Human Rights Code wasconcerned, the Supreme Court was unanimous in finding that the statutory provision in issueviolated subsection 15(1) of the Charter, as it deprived individuals of a benefit under the Code onthe basis of an enumerated ground. The Court was, however, divided on the question of whether theprovision was justifiable under section 1 of the Charter.[64] Justice La Forest wrote the majority judgment, with Chief Justice Dickson and JusticeGonthier concurring. Justices Cory and Sopinka each wrote separate reasons, concurring in the