View cases - Stewart McKelvey

Page: 58[221] As the Supreme Court observed in McKinney, the question under the relaxed minimalimpairment test articulated in Irwin Toy is “whether the government had a reasonable basis forconcluding that it impaired the relevant right as little as possible given the government's pressingand substantial objectives”: at para. 68, emphasis added.[222] This does not “absolve the judiciary of its constitutional obligation to scrutinize legislativeaction to ensure reasonable compliance with constitutional standards”. It does, however, require that2011 FC 120 (CanLII)the reviewing court utilize greater circumspection in such cases: McKinney, at para. 104.[223] The question of minimal impairment, once decided, is not necessarily cast in stone for alltime. Rather, it must be assessed in the context of the current social and historical context: seeMcKinney, at para. 123.[224] As the British Columbia Court of Appeal observed in Greater Vancouver, the Legislaturemay have had limited facts at its disposal, such that no legislative deference will be appropriate.Alternatively, the Court may be presented with arguments that were not considered by theLegislature in making its policy choices: at para. 84.[225] Thus the question for this Court is whether, in light of the evidence before it, the Tribunalwas correct in finding that Air Canada and ACPA had failed to demonstrate that the governmentcontinued to have a reasonable basis for concluding that paragraph 15(1)(c) of the CHRA interferesas little as possible with the equality rights of workers over the normal age of retirement, having