View cases - Stewart McKelvey

Page: 29[112] Moreover, in both the Ontario and British Columbia human rights legislation, the provincialLegislatures specifically identified the age at which the protection afforded by the law should ceasebeing available to employees. Parliament did not make such a policy choice in enacting paragraph15(1)(c). Rather, it elected to delegate the choice of age at which employees will cease to enjoy theprotection of the CHRA to employers employing a particular class of workers.[113] That is, it is employers who will decide what the “normal age of retirement” will be forvarious types of positions. This decision may be arrived at through the collective bargaining2011 FC 120 (CanLII)process, or may result from the unilateral imposition of employer retirement policies. In practice,paragraph 15(1)(c) of the CHRA applies primarily to private sector employers, as the federalgovernment abolished mandatory retirement for its employees in the 1980’s.[114] There is another difference between the legislation at issue in this case and that at issue inMcKinney. In McKinney, the Supreme Court identified 65 as the “normal age of retirement” inCanadian society: at para. 106. Thus the legislative provisions at issue in both McKinney andHarrison conformed to this societal norm. In contrast, paragraph 15(1)(c) of the CHRA permits theimposition of retirement on employees at an age below 65, so long as it accords with the “normalage of retirement” for a particular type of position.[115] The younger the mandatory age of retirement, the greater the adverse effects will be forthose who have been unable to accumulate sufficient financial resources or pensionable earningsprior to being compelled to retire. The labour economists testifying before the Tribunal agreed thatthis group will be disproportionately made up of women and immigrants.