View cases - Stewart McKelvey

Page: 40[156] These circumstances further support the view that the Supreme Court’s decision inMcKinney should not dictate the result of a section 1 Charter analysis in this case.v) Other Post-McKinney Mandatory Retirement Jurisprudence[157] Before leaving this issue, I would note that my conclusion that the Supreme Court’sdecisions in McKinney and its companion cases do not require a finding that paragraph 15(1)(c) ofthe CHRA is saved by section 1 of the Charter is reinforced by a review of several lower court post-2011 FC 120 (CanLII)McKinney decisions.[158] These cases deal either with the constitutional validity of mandatory retirement policies or oflegislation, and, in one case, deal specifically with the constitutional validity of paragraph 15(1)(c)of the Canadian Human Rights Act itself. In each of these cases, superior or appellate Courts inthree different provinces have concluded that the contextual assumptions upon which the SupremeCourt’s decision in McKinney was founded are no longer valid.a) Greater Vancouver Regional District Employees’ Union v. Greater Vancouver RegionalDistrict[159] The first of these decisions is the judgment of the British Columbia Court of Appeal inGreater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District,2001 BCCA 435, 206 D.L.R. (4th) 220. This case did not involve a Charter challenge to humanrights legislation, but rather the review of an arbitrator’s decision striking down an employer’smandatory retirement policy.