View cases - Stewart McKelvey

Page: 20workers were compensated for by older workers’ increased experience and wisdom, as well as theskills they had acquired over time. Consequently she found there to be no pressing and substantialobjective addressed by the Universities’ mandatory retirement policy: at paras. 389-393.[77] Justice L’Heureux-Dubé was further of the view that the means chosen by the Legislaturewere too intrusive. Individuals over 65 were excluded from the protection of the Code solelybecause of their age, without regard to their individual circumstances. She noted that the adverseeffects of mandatory retirement are most painfully felt by the poor, and that women are particularly2011 FC 120 (CanLII)negatively affected as they are less likely to have accumulated adequate pensions: at paras. 398-399.[78] In the absence of a reasonable justification for a legislative scheme permitting compulsoryretirement at age 65, Justice L’Heureux-Dubé would have struck out subsection 9(a) of the Code inits entirety as unconstitutional.[79] At the same time that it rendered judgment in McKinney, the Supreme Court of Canada alsoreleased its decisions in the three companion cases of Harrison, Stoffman and Douglas College. Asthese cases relied heavily on the reasoning in McKinney, I will refer to each of them only briefly.iii)Harrison v. University of British Columbia[80] Harrison involved a challenge to the University of British Columbia’s mandatory retirementpolicy. There was also a challenge to the constitutionality of the definition of “age” in section 1 ofthe British Columbia Human Rights Act, S.B.C. 1984, c. 22, which limited the protection of the Actto those between the ages of 45 and 65.