View cases - Stewart McKelvey

[198] In this regard, the Supreme Court was unanimous in concluding that legislation denyinghuman rights protection to those over 65 violated subsection 15(1) of the Charter, as it deniedindividuals equal protection under the law, based upon their age.[199] However, after reviewing issues such as the place of mandatory retirement within society,demographics within the workplace, and the fact that mandatory retirement policies are typicallynegotiated through the collective bargaining process, the majority of the Supreme Court concludedthat the legislative provisions in question would have been saved under section 1 of the Charter.(ii) The decision in Law v. Canada[200] In 1999, the Supreme Court of Canada rendered its decision in Law v. Canada, previouslycited. As the Supreme Court subsequently observed in Gosselin, the central lesson of Law was theneed for a contextual inquiry in order to establish whether a statutory distinction conflicts with thepurpose of subsection 15(1) of the Charter, such that “a reasonable person in circumstances similar tothose of the claimant would find that the legislation which imposes differential treatment has theeffect of demeaning his or her dignity”: see Gosselin, previously cited, at paragraph 25.2009 FC 367 (CanLII)[201] That is, the Supreme Court held in Law that in order to establish a violation of subsection15(1) of the Charter, a claimant must establish, on the civil standard of proof, that the law in questionimposes differential treatment as between the claimant and others, either in purpose or in effect. Theclaimant must further demonstrate that this differential treatment is based on one or more enumeratedor analogous grounds. Finally, the claimant must show that the impugned law has a purpose or effectthat is discriminatory in the sense that it denies human dignity on one of the enumerated or analogousgrounds.[202] In this regard, the Supreme Court observed that a distinction made on an enumerated oranalogous ground will violate the claimant’s human dignity if it reflects or promotes the view that theindividuals affected are less deserving of concern, respect, and consideration than others.[203] In addressing the final component of the Law test, the Supreme Court identified four“contextual factors” to assist in determining whether a distinction contained in an impugned law,when viewed from the perspective of a reasonable person in the claimant’s circumstances, impairs hisor her human dignity. These factors include [at pages 501–502]:(A) [Any p]re-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual orgroup at issue[;]…(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and theactual need, capacity, or circumstances of the claimant or others[;]…(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group insociety[;] and(D) The nature and scope of the interest affected by the impugned law.(iii) The Tribunal’s decision on the Charter issue…[204] Before the Tribunal, Messrs. Vilven and Kelly argued that there was no material differencebetween the provisions in the Ontario and British Columbia human rights codes at issue in McKinney