View cases - Stewart McKelvey

Page: 41[160] In dismissing the employer’s appeal, the Court held that the mandatory retirement policywas discriminatory, and that the employer had not met its burden of establishing that the policy wasjustified under section 1 of the Charter. In coming to this conclusion, the Court was not persuadedthat McKinney and subsequent decisions had decided that “all mandatory retirement policies in thepublic sector are saved under s.1 of the Charter simply because they do not contravene relevantprovincial human rights legislation”: Greater Vancouver, at para. 120.[161] Of particular significance are the comments in Greater Vancouver with respect to the2011 FC 120 (CanLII)ongoing relevance of the McKinney decision. In this regard, the Court observed that McKinney wasnot intended to be a final determination of the mandatory retirement question, and that, as I havenoted earlier, there were intimations in the reasons of the majority that the issue should be revisitedin the future: at para. 28.[162] The majority decision in Greater Vancouver goes on to observe that “Since it is now 11years since McKinney was decided, and since the issue of mandatory retirement is one ofconsiderable importance and concern in our society, I respectfully suggest that the time forrevisiting the issue is upon us”: at para. 28.[163] Under the heading “Time for Reconsideration”, the majority in Greater Vancouver concludewith the following cri de cœur urging the Supreme Court of Canada to reconsider the issue ofmandatory retirement:Eleven years have now passed since McKinney was decided. Thedemographics of the workplace have changed considerably, not onlywith respect to the university community, but also in the workplaceat large. At least two other countries, Australia and New Zealand