View cases - Stewart McKelvey

Page: 43the efforts of the [Ontario Human Rights] Commission”. This attitudinal change had culminated inlegislative reform, with the Ontario Legislature having recognized that “mandatory retirement is aserious form of age discrimination”, leading to its abolition in both the public and private sectors inthat province: at para. 45.c) CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816[167] The most recent and most directly relevant cases are a pair of decisions rendered first by alabour arbitrator, and then by the Manitoba Court of Queen’s Bench, expressly dealing with the2011 FC 120 (CanLII)constitutionality of paragraph 15(1)(c) of the CHRA. Both decisions conclude that paragraph15(1)(c) violates subsection 15(1) of the Charter and that it is not saved by section 1.[168] CKY-TV v. Communications, Energy and Paperworkers Union of Canada (Local 816)(Kenny Grievance), [2008] C.L.A.D. No. 92 is the arbitral decision dealing with the mandatoryretirement of a maintenance technician with CKY-TV at age 65 in accordance with a companypolicy. The employee’s union grieved the termination of his employment, also challenging theconstitutionality of paragraph 15(1)(c) of the CHRA.[169] In concluding that paragraph 15(1)(c) violated subsection 15(1) of the Charter and was notsaved by section 1, Arbitrator Peltz found that the Supreme Court had proceeded on the basis ofcontextual assumptions in McKinney, which assumptions were no longer valid in light of the expertevidence before him.