View cases - Stewart McKelvey

Page: 30[116] Further, as I observed in Vilven #1, paragraph 15(1)(c) of the CHRA is an unusual provisionto find in human rights legislation, in that it allows for federally-regulated employers to discriminateagainst their employees on the basis of age, as long as that discrimination is pervasive within aparticular industry: at para. 1.[117] The delegation of the choice of the permissible mandatory retirement age to private sectorindustry players has another consequence for federally-regulated employees - one not felt by those2011 FC 120 (CanLII)working in either Ontario or British Columbia at the time that McKinney and Harrison weredecided.[118] That is, employees in both Ontario and British Columbia could readily have discovered theage at which they would cease to enjoy the protection of the relevant provincial human rightslegislation. In contrast, paragraph 15(1)(c) of the CHRA does not clearly inform employees of theirrights. The uncertainty and practical difficulties that the wording of paragraph 15(1)(c) creates areillustrated by the facts of this case.[119] In order to understand his or her rights, a federally-regulated employee would have to knowwhich positions were “similar to the position of that individual”. This would require the employeeto properly identify the appropriate comparator group. This is not an easy task, even for legallytrainedindividuals familiar with human rights principles.