View cases - Stewart McKelvey

Page: 44[170] The arbitrator’s section 1 analysis turned on the issue of minimal impairment, with thearbitrator concluding that the evidence before him did not establish that “there is a reasonable basisfor believing that the employment regime of pensions, job security, good wages and reasonablebenefits requires the maintenance of mandatory retirement at age 65 or a predominant age”: at para.216.[171] The arbitrator’s decision was subsequently confirmed by the Manitoba Court of Queen’sBench: see CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816,2011 FC 120 (CanLII)2009 MBQB 252, [2009] M.J. No. 336. The Court agreed with the arbitrator that the employer hadnot satisfied the minimal impairment component of the Oakes test, in light of the evidence in therecord regarding current social and economic conditions.[172] The Court observed that the operation of paragraph 15(1)(c) was not limited to situationswhere unions or employees had negotiated or agreed to mandatory retirement at any particular age.Rather, the exception to the prohibition on age discrimination created by paragraph 15(1)(c) went“far beyond limiting the discriminatory practice to those situations where contracts are trulynegotiated”: at para. 32.[173] Indeed, the Court found that paragraph 15(1)(c) “purports to permit an employer toterminate a person's employment simply by establishing or proving a ‘normal age of retirement’ forworkers in similar positions”. As a consequence, the Court was satisfied that the arbitrator’sconclusion on the issue of minimal impairment was correct: at para. 32.