View cases - Stewart McKelvey

Page: 28observed in her dissenting judgment in McKinney, section 9 of the Code permits all forms ofworkplace age discrimination against those over 65, and not just their mandatory retirement: at para.350. In contrast, the exception created by paragraph 15(1)(c) of the CHRA relates only to the issueof mandatory retirement.[109] I agree that in this respect, paragraph 15(1)(c) of the CHRA is narrower than section 9 of theOntario Human Rights Code. However, there are other significant differences between paragraph15(1)(c) of the CHRA, and the provisions of the Ontario and British Columbia human rights2011 FC 120 (CanLII)legislation that were in issue in McKinney and Harrison that have a bearing on whether paragraph15(1)(c) is saved by section 1 of the Charter.[110] First of all, the legislative history and objectives of each provision is different. Justice LaForest discussed the legislative history and objectives of section 9 of the Ontario Human RightsCode in McKinney. While noting that concern had been expressed by legislators for not affordingprotection in the employment sector to those over 65, in the end, “other considerationspredominated”. These included “the potential for delayed retirement and delayed benefits, as wellas the effect on hiring and personnel practices, and the impact on youth unemployment”: at para. 94.[111] In contrast, when the CHRA was before Parliament, Minister of Justice Ron Basford andAssistant Deputy Minister Barry Strayer testified that the intent of paragraph 15(1)(c) was to leavethe issue of a mandatory retirement age in the private sector to be negotiated between employersand employees: see Vilven #1 at paras. 159-161 and 243-247.