View cases - Stewart McKelvey

Page: 37[144] The Court addressed the professors’ argument that the social, political and economicassumptions underlying the McKinney decision were no longer valid. In this regard, the Courtstated that “When such change is alleged, and there are at least some facts alleged which supportsuch change, it is not appropriate to prevent the matter from proceeding on the basis of staredecisis”: Leeson, at para. 9. The Court went on, however, to dismiss the professors’ Charterchallenge on other grounds.[145] It has now been some 18 years since McKinney was decided, and approximately 24 years2011 FC 120 (CanLII)since the evidentiary record would have been assembled in that case. The Supreme Court did notknow what the ramifications of abolishing mandatory retirement would be when it decidedMcKinney. As will be discussed further on in these reasons, there is now expert evidence availableas to the impact that the abolition of mandatory retirement has actually had for traditional labourmarket structures, including deferred compensation and pension schemes, seniority and tenuresystems, and so on.[146] Consequently, I am satisfied that there are new facts available which call into question thefactual underpinning of the Supreme Court’s decision in McKinney.iv)The New Developments in Public Policy[147] Bedford also stated that Supreme Court jurisprudence could be revisited where there were“new developments in public policy … that may have called into question the basis for the SupremeCourt decision”: at para. 80.