View cases - Stewart McKelvey

Page: 36[139] Where earlier Supreme Court decisions can and should be revisited, “such revisitations mustnecessarily commence at the trial court level”: Leeson v. University of Regina, 2007 SKQB 252,301 Sask. R. 316, at para. 9.[140] This case thus falls within the exceptional circumstances discussed in Wakeford. It wasopen to the Tribunal to revisit the issue of mandatory retirement as it related to paragraph 15(1)(c)of the Canadian Human Rights Act, in light of more recent evidence.2011 FC 120 (CanLII)[141] This then takes us to the third distinguishing feature of this case, which is the differences inthe evidentiary records that were before the Supreme Court in McKinney and the Tribunal in thiscase.iii)The Differences in the Evidentiary Records[142] Supreme Court jurisprudence may also be revisited where there are “new facts that mayhave called into question the basis for the Supreme Court decision”: see Bedford, at para. 80.[143] In Leeson, the Court considered when it is appropriate for a lower court to revisit thedecisions of a higher court. It is noteworthy that this discussion took place in relation to a Charterchallenge brought by university professors to a provision of The Saskatchewan Human Rights Code,S.S.1979, c. S-24.1, limiting the protection against age discrimination provided by the Code to thoseunder 65. This was essentially the issue that was before the Supreme Court of Canada in McKinney.