View cases - Stewart McKelvey

Page: 1I. Introduction[1] Paragraph 15(1)(c) of the Canadian Human Rights Act, R.S., 1985, c. H-6, [CHRA] allowsan employer to terminate the employment of an individual if that person has reached the “normalage of retirement” for those working in similar positions.[2] This Court has previously found that paragraph 15(1)(c) of the Act violates subsection 15(1)of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (UK), 1982 c.11, as it denies the equal protection and equal2011 FC 120 (CanLII)benefit of the law to workers over the normal age of retirement for similar positions. In so doing,paragraph 15(1)(c) has the effect of perpetuating the group disadvantage and prejudice faced byolder workers by promoting the stereotypical view that older workers are less capable, or lessdeserving of recognition or value as human beings or as members of Canadian society: see Vilven v.Air Canada, [2010] 2 F.C.R. 189, [2009] F.C.J. No. 475, at paras. 9 and 337-339 (“Vilven #1”).[3] These reasons pertain to two applications for judicial review of a subsequent decision of theCanadian Human Rights Tribunal which found that paragraph 15(1)(c) is not a reasonable limitjustifiable in a free and democratic society as contemplated by section 1 of the Charter. Oneapplication is brought by Air Canada and the other by the Air Canada Pilots Association (or“ACPA”), the bargaining agent for Air Canada pilots. The applications were consolidated by orderof this Court.[4] For the reasons that follow, I find that the Tribunal’s decision on the Charter issue wascorrect. As a result, ACPA’s application, which only raises the Charter issue, will be dismissed.