View cases - Stewart McKelvey

Page: 19[73] In contrast, Justice Wilson observed that subsection 9(a) of the Code did not only allow formandatory retirement; it also permitted age discrimination in the employment context in all itsforms for those over the age of 65. As a consequence, she was of the view that the rationalconnection branch of the Oakes test had not been met: at para. 350.[74] More importantly for our purposes, Justice Wilson found that the legislation did not meetthe minimal impairment component of the Oakes test. She noted that older workers would sufferdisproportionately greater hardship as a result of the infringement of their equality rights. She also2011 FC 120 (CanLII)observed that women are negatively affected by mandatory retirement, as they often haveinterrupted work histories as a result of their having assumed childcare responsibilities, with theresultant loss of pensionable earnings: at paras. 351-353.[75] Justice Wilson recognized that mandatory retirement requirements are often the product ofcollective bargaining. However, she also observed that even if it were acceptable for citizens tobargain away their fundamental human rights in exchange for economic gain, the fact was that themajority of working people in Ontario did not have access to such beneficial contractualarrangements: at para. 352.[76] Justice L’Heureux-Dubé agreed with Justice Wilson that subsection 9(a) of the Code couldnot be justified under section 1 of the Charter. She found that there was no convincing evidence thatmandatory retirement was intimately related to the tenure system. In her view, the value of tenurewas threatened, not by the aging process, but by the incompetence of individual workers.Discrepancies between the physical and intellectual abilities of older workers versus younger