View cases - Stewart McKelvey

Page: 27[104] The Ontario Human Rights Code provision under consideration in McKinney contained ageneral prohibition against age discrimination in employment. “Age” was defined in section 9 of theCode as being “an age that is eighteen years or more and less than sixty-five years”. As a result,those over the age of 65 did not enjoy the protection of the Code.[105] The provision of the British Columbia Human Rights Act at issue in Harrison defined “age”as being “an age of 45 years or more and less than 65 years”, with a similar result.2011 FC 120 (CanLII)[106] There are undoubtedly similarities between these provisions and paragraph 15(1)(c) of theCHRA, which provides that:15. (1) It is not a discriminatorypractice if…(c) an individual’s employmentis terminated because thatindividual has reached thenormal age of retirement foremployees working in positionssimilar to the position of thatindividual …15. (1) Ne constituent pas desactes discriminatoires :….c) le fait de mettre fin àl’emploi d’une personne enappliquant la règle de l’âge dela retraite en vigueur pour cegenre d’emploi …[107] None of these legislative provisions mandate retirement at a specified age. All arepermissive provisions which limit the protection offered by relevant legislation in the employmentcontext.[108] ACPA and Air Canada submit that paragraph 15(1)(c) of the CHRA is more readilydefensible, as it is narrower than section 9 of the Ontario Human Rights Code. As Justice Wilson