View cases - Stewart McKelvey

Page: 59regard to the government’s pressing and substantial objectives: see the arbitrator’s decision in CKY-TV at para. 216, and the Manitoba Court of Queen’s Bench decision at para. 31.b) The Tribunal’s Findings with Respect to the Minimal Impairment Issue[226] The Tribunal found that paragraph 15(1)(c) did not minimally impair older workers’equality rights as far less intrusive options could be, and are used, rather than simply allowing formandatory retirement. These other legislative options include bona fide occupational requirementand bona fide retirement or pension plan justifications. According to the Tribunal, the use of these2011 FC 120 (CanLII)types of less intrusive measures have not caused the collapse of employee pension and benefitschemes in the jurisdictions where they were in effect. The Tribunal did, however, find that a morecarefully tailored provision might satisfy the minimal impairment component of the Oakes test:Tribunal decision #2, at paras. 57-64.c) Air Canada and ACPA’s Arguments with Respect to Minimal Impairment[227] Air Canada and ACPA submit that the Tribunal erred by requiring that the governmentselect the least intrusive possible option, rather than one that fell within a range of reasonableoptions. They say that the Supreme Court had already determined in McKinney and Harrison thatlimiting the availability of mandatory retirement to cases where age could be shown to be a bonafide occupational requirement could not satisfy the objectives of similar provisions in Ontario andBritish Columbia human rights legislation.[228] The applicants further submit that the fact that other jurisdictions may have adopteddifferent approaches to the issue of mandatory retirement simply shows that some provincial