View cases - Stewart McKelvey

difficulties can be accommodated by Air Canada, or rise to the level of undue hardship, are issuesthat the Tribunal may ultimately have to address.[179] The second comment relates to the concern with respect to Air Canada’s ability, as thedominant industry player, to skew the analysis with its own mandatory retirement policy. Indeed, it isnoteworthy that almost all of the 56.13% of Canadian airline pilots who are required to retire by age60 fly for Air Canada.[180] The arbitrator in the CKY-TV decision put it well when he asked “[w]hy should the Employergain assistance from its own organizational practices in defending against a human rightschallenge?”: at paragraph 133.[181] While this is indeed a troubling question, I agree with the arbitrator in CKY-TV that it isindicative of a more fundamental problem with paragraph 15(1)(c) of the Canadian Human RightsAct, which is that the provision allows for discrimination to occur, as long as it is pervasive within anindustry: see paragraph 133. However, as the arbitrator also noted, if the process is flawed, theremedy is under the Charter: see paragraph 134.2009 FC 367 (CanLII)[182] The Tribunal itself observed in its 1983 decision in Prior that paragraph 15(1)(c) “is a rathercurious provision in human rights legislation”, going so far as to suggest that the provision would notsurvive a challenge under section 15 of the Charter, which had not yet come into force: seeparagraphs 11456–11460.[183] This then leaves the question of whether paragraph 15(1)(c) of the Canadian Human RightsAct does in fact violate subsection 15(1) of the Charter.VIII. Does paragraph 15(1)(c) of the CHRA violate subsection 15(1) of the Charter?[184] Prior to the hearing of these applications, a notice of constitutional question was served byMessrs. Vilven and Kelly on the federal and provincial attorneys general, pursuant to the provisionsof section 57 [as am. by S.C. 1990, c. 8, s. 19; 2002, c. 8, s. 54] of the Federal Courts Act [R.S.C.,1985, c. F-7, s. 1 (as am. idem, s. 14)]. The notice advises that these applicants are challenging theconstitutional validity of paragraph 15(1)(c) of the Canadian Human Rights Act on the basis that itviolates subsection 15(1) of the Charter. Messrs. Vilven and Kelly further assert that this violation isnot saved by operation of section 1 of the Charter.[185] Subsection 15(1) of the Charter provides that:15. (1) Every individual is equal before and under the law and has the right to the equal protection and equalbenefit of the law without discrimination and, in particular, without discrimination based on race, national orethnic origin, colour, religion, sex, age or mental or physical disability.[186] In essence, Messrs. Vilven and Kelly argue that paragraph 15(1)(c) of the Canadian HumanRights Act denies them the equal benefit and equal protection of the law. It does so by permittingtheir employer to compel them to retire at a fixed age, without any regard to their individual abilities,skills and capacities, as long as that age is the normal age of retirement for positions similar to thosethat they occupied prior to their retirement.[187] At the outset of the hearing, the parties confirmed that the Attorney General of Canada wasindeed aware of these applications, but had elected not to participate at this stage in the proceedings.[188] It should also be noted that the Canadian Human Rights Commission made only briefsubmissions in relation to the Charter issue. The Commission was of the view that it was constrainedas to the position that it could take in relation to this issue, as it was its own enabling legislation thatwas under challenge in this proceeding.