View cases - Stewart McKelvey

Page: 46[178] As noted earlier, the issue that ultimately came before the Supreme Court was ajurisdictional one. The majority of the Court found that neither the Commission nor the Tribunalhad the jurisdiction to consider the constitutional validity of paragraph 15(1)(c) of the CHRA.Consequently, the majority did not address the significance of McKinney for Messrs. Bell andCooper’s human rights complaints.[179] In their dissenting judgment, Justices McLachlin and L’Heureux-Dubé found that both theCommission and the Tribunal had the power to consider whether the Charter rendered the normal2011 FC 120 (CanLII)age of retirement defence invalid.[180] More importantly for the purposes of this case, the dissenting judges rejected the airline’sargument that McKinney provided a complete answer to Messrs. Bell and Cooper’s human rightscomplaints. They noted that “Everyone agrees that the issue of whether a section of the CanadianHuman Rights Act has been invalidated by s. 15 of the Charter and s. 52 of the Constitution Act,1982 is an important issue for the appellants and for Canadians generally”: at para. 69.[181] Justices McLachlin and L’Heureux-Dubé did not accept the airline’s contention that becauseMcKinney held that age 65 was the normal age of retirement for the university professors, itnecessarily followed that a statute providing for retirement at the normal age for the occupation inquestion must also be saved under section 1.[182] According to the dissenting judges, “this argument oversimplifies the process envisagedunder s. 1 of the Charter”. They stated that “Even if one were to accept the doubtful submission that