View cases - Stewart McKelvey

(i) Pre-existing disadvantage suffered by the individual or group 265(ii) The degree of correspondence between the impugned law and the actualneeds, circumstances, and capacities of the individual or group 279(iii) Does the law have an ameliorative purpose or effect? 283(iv) The nature and scope of the interest affected 291(v) Other observations 303(d) Conclusion with respect to the subsection 15(1) Charter issue 334IX. Disposition 340X. Costs 3422009 FC 367 (CanLII)The following are the reasons for judgment and judgment rendered in English byMACTAVISH J.:I. Introduction[1] Paragraph 15(1)(c) of the Canadian Human Rights Act (the Act or CHRA) is an unusualprovision to find in human rights legislation, in that it allows for employers to discriminate againsttheir employees on the basis of age, as long as that discrimination is pervasive within a particularindustry.[2] George Vilven and Robert Kelly were each forced to retire from their positions as pilots withAir Canada when they turned 60 years of age, in accordance with the mandatory retirementprovisions of the collective agreement in force between their union and the airline.[3] Human rights complaints filed by Messrs. Vilven and Kelly were dismissed by the CanadianHuman Rights Tribunal [2007 CHRT 36], which found that [at paragraph 7] 60 was the “normal ageof retirement” for positions similar to those that they occupied at the time of their retirement, ascontemplated by paragraph 15(1)(c) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6. As aresult, the termination of their employment did not amount to a discriminatory practice within themeaning of the Act.[4] The Tribunal also found that paragraph 15(1)(c) of the Canadian Human Rights Act did notviolate subsection 15(1) of the Canadian Charter of Rights and Freedoms, being Part I of theConstitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,No. 44].[5] Mr. Vilven, Mr. Kelly, and the Canadian Human Rights Commission have each broughtapplications for judicial review with respect to the Tribunal’s decision. All three applicationschallenge the Tribunal’s finding that 60 was the normal age of retirement for positions similar tothose occupied by Messrs. Vilven and Kelly at the time of their retirement from Air Canada. Messrs.Vilven and Kelly have each also challenged the constitutionality of paragraph 15(1)(c) of theCanadian Human Rights Act in their applications, while the Commission has not.[6] The three applications for judicial review were heard together, and these reasons pertain to allthree cases, with the proviso that the Court’s Charter analysis does not apply in relation to theCommission’s application for judicial review (file T-1680-07).