View cases - Stewart McKelvey

Page: 23[89] Unlike the Ontario and British Columbia human rights legislation at issue in McKinney andHarrison, the IRPA did not limit its protection against age-based employment discrimination tothose under the age of 65. Rather, section 11.1 of the Individual’s Rights Protection Act prohibitedsuch discrimination unless an employer could demonstrate that it was “reasonable and justifiable inthe circumstances”. Dr. Dickason did not challenge the constitutional validity of section 11.1 underthe Charter, but rather the university’s claim that the mandatory retirement requirement in issue wasreasonable and justifiable.2011 FC 120 (CanLII)[90] In rejecting Dr. Dickason’s appeal from the dismissal of her human rights complaint, JusticeCory (writing for a majority including Justices La Forest, Gonthier and Iacobucci), discussed thedifference between the rights conferred by human rights legislation and those conferred by theCharter. He noted that human rights legislation is aimed at regulating the action of privateindividuals, whereas the Charter's goal is to regulate government action: at para. 18.[91] As a consequence, although the decision in McKinney provided guidance, Justice Cory heldthat it did not determine the outcome of Dr. Dickason’s case, as no deference was owed to thepolicy choices of the university as a private institution: at para. 22.[92] While recognizing that parties may not generally contract out of human rights statutes,Justice Cory noted that the mandatory retirement provision at issue was arrived at through thecollective bargaining process. In his view, this could provide evidence of the reasonableness of apractice which appeared on its face to be discriminatory: at para. 39.