View cases - Stewart McKelvey

Page: 33age of retirement’ for all Canadian pilots for the purposes of paragraph 15(1)(c) of the Act: seeVilven #1, at para. 171.[128] In other words, paragraph 15(1)(c) of the Act allows Air Canada and ACPA’s owndiscriminatory conduct to provide them with a defence to Messrs. Vilven and Kelly’s human rightscomplaints: see Vilven #1, at para. 313.[129] None of these issues were considered by the Supreme Court in McKinney and Harrison in2011 FC 120 (CanLII)determining whether the legislation at issue in those cases was demonstrably justifiable undersection 1 of the Charter. The differences between the provisions of the Ontario and BritishColumbia human rights legislation and paragraph 15(1)(c) of the Canadian Human Rights Act aresufficiently material as to justify the finding that the Supreme Court’s decision in McKinney shouldnot automatically dictate the result of a section 1 Charter analysis in this case.ii)McKinney did not Purport to be the Final Word on the Subject of Mandatory Retirement[130] The second reason for concluding that McKinney does not dictate the result in this case isthat the majority decision in McKinney did not purport to be the final word on the subject ofmandatory retirement for all time.[131] The constitution is a “living tree capable of growth and expansion within its natural limits”.The result of this is that constitutional rights are subject to changing judicial interpretations overtime: see Edwards v. Attorney-General for Canada, [1930] A.C. 124 at p. 136 (P.C.), per LordSankey.