View cases - Stewart McKelvey

Page: 52[198] The Tribunal further found that the link between mandatory retirement and the benefitstraditionally associated with it was not as strong as was once believed: at para. 47. As these benefitscould be achieved without mandatory retirement, the Tribunal held that it was “difficult to see howpermitting it to be negotiated in the workplace is important enough to warrant the violation ofequality rights that was identified by the Federal Court in the present case”: at para. 49.[199] Having regard to the aging of the workforce, and the fact that many individuals want or needto continue working, the Tribunal concluded that preventing, rather than permitting, age2011 FC 120 (CanLII)discrimination after the normal age of retirement has become a pressing and substantial need insociety: at para. 48.[200] In my view, the Tribunal erred by conflating elements of the proportionality analysis with itsassessment of whether Parliament’s objectives in enacting paragraph 15(1)(c) of the CHRA werepressing and substantial.[201] I have previously found that the objective of paragraph 15(1)(c) was to permit thenegotiation of mandatory retirement arrangements between employers and employees, particularlythrough the collective bargaining process, so as to allow for the preservation of socially desirableemployment regimes which include matters such as pensions, job security, wages and benefits.Such an objective continues to be a pressing and substantial one in our society. Indeed, I note thatthis point was conceded by the union in CKY-TV.[202] The means chosen by Parliament to achieve this objective was the enactment of the