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and Harrison, and paragraph 15(1)(c) of the Canadian Human Rights Act. As such, they asserted thatthe decisions in McKinney and Harrison were binding on the Tribunal, and it necessarily followedthat paragraph 15(1)(c) of the CHRA also breached subsection 15(1) of the Charter.[205] As was noted earlier in these reasons, the Tribunal did not accept this argument, noting thatsince McKinney and Harrison had been decided, the law regarding the approach to be taken to claimsunder subsection 15(1) of the Charter had evolved. In this regard, the Tribunal made specificreference to the decisions of the Supreme Court of Canada in Law and Gosselin, both previouslycited.[206] The Tribunal noted that in Law, the Supreme Court held that the purpose of subsection 15(1)of the Charter is “to assure that human dignity is not harmed by arbitrary distinctions created by thelaw or government action”, and further that “the overriding concern with protecting and promotinghuman dignity infuses all elements of the discrimination analysis”: Tribunal decision, at paragraphs81–82, quoting from Law, at paragraph 54.[207] The Tribunal [at paragraph 89] then identified the issue before it as being “whether, as aresult of the age-based distinction in s. 15(1)(c) of the CHRA, the complainants’ dignity was affrontedor they experienced negative stereotyping relating to their age.”2009 FC 367 (CanLII)[208] After considering the issue, the Tribunal concluded that, although paragraph 15(1)(c) of theAct deprived Messrs. Vilven and Kelly of the ability to challenge Air Canada’s mandatory retirementpolicy, the loss of this opportunity did not violate their dignity, or fail to recognize them as full andequal members of society.[209] In coming to this conclusion, the Tribunal asked itself firstly, whether paragraph 15(1)(c) ofthe Act drew a distinction between Messrs. Vilven and Kelly and others on the basis of their personalcharacteristics; secondly, whether they were subject to differential treatment on an enumerated oranalogous ground; and thirdly, whether the differential treatment imposed a burden on them whichreflected or reinforced a negative disadvantage or stereotype, or had a negative effect on their dignityor self-worth.[210] The Tribunal identified this third question as being central to its decision.[211] As to whether paragraph 15(1)(c) of the Act drew a distinction between Messrs. Vilven andKelly and others on the basis of their personal characteristics, the Tribunal concluded that although itwas clear that airline pilots, as pilots, did not constitute a group which suffered from negativestereotyping or pre-existing disadvantage, the more appropriate focus of the Tribunal’s analysis was[at paragraph 92] “whether the complainants, as members of the group of older workers whoseemployment has been forcibly terminated, are subject to pre-existing disadvantage or negativestereotyping.”[212] In this regard, the Tribunal found that the disadvantages suffered by older workers have beennoted in the case law, noting that in McKinney, the Supreme Court observed that “[b]arring specificskills, it is generally known that persons over 45 have more difficulty finding work than others. Theydo not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter arefrequently more recently trained in the more modern skills”: at page 299.[213] The Tribunal then went on to find that there was no indication that Messrs. Vilven and Kellyhad themselves experienced these age-related disadvantages or negative stereotyping. The evidencebefore the Tribunal [at paragraph 95] established that both “were fully up-to-date in the latesttechnology and skills required to fly some of the most sophisticated aircraft in a major internationalairline.” Moreover, both Mr. Vilven and Mr. Kelly had been able to obtain new employment as pilotswith other airlines that did not have mandatory retirement policies.