View cases - Stewart McKelvey

Page: 49measures under section 1”: see Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1S.C.R. 877, [1998] S.C.J. No. 44, at paras. 87 and 88. As the Supreme Court observed in Eldridge v.British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, “where thelegislation under consideration involves the balancing of competing interests and matters of socialpolicy, the Oakes test should be applied flexibly, and not formally or mechanistically”: at para. 85.[190] The Supreme Court also observed in Eldridge that the application of the Oakes test“requires close attention to the context in which the impugned legislation operates”: at para. 85.2011 FC 120 (CanLII)[191] Relevant contextual factors may include the nature of the harm addressed, the vulnerabilityof the group protected, subjective fear and apprehension of harm, and the nature and importance ofthe infringed activity: see R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527, at para. 10. See alsoThomson Newspapers Co., and Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1S.C.R. 827.[192] Although this Charter challenge arises in the context of the forced retirement of two AirCanada pilots, I agree with the parties that my section 1 analysis should not be restricted to thiscontext. Messrs. Vilven and Kelly were not denied the protection of the CHRA because they wereairline pilots working for Air Canada, but because they had reached the “normal age of retirement”for similar positions, as contemplated by paragraph 15(1)(c) of the CHRA.[193] As the Supreme Court observed in McKinney, to limit a section 1 analysis to the specificfactual context in which the challenge arises would be inconsistent with the Oakes test, which