View cases - Stewart McKelvey

Page: 61individual. The Tribunal also failed to properly consider the fact that the collective agreementprovided evidence of the reasonableness of the mandatory retirement policy.[233] Instead, the applicants say that the Tribunal approached its minimal impairment analysis asif it had a free hand in directing what Parliament’s choices should have been. In so doing, theTribunal disregarded the admonition of the Supreme Court in McKinney that decision-makersshould not lightly use the Charter to second-guess legislative decisions as to how quickly it shouldproceed in moving forward toward the ideal of equality: citing McKinney, at para. 131.2011 FC 120 (CanLII)d) The Expert Evidence[234] As the Supreme Court observed in Newfoundland (Treasury Board) v. Newfoundland andLabrador Assn. of Public and Private Employees (N.A.P.E.), 2004 SCC 66, [2004] 3 S.C.R. 381,the evidence led in support of a section 1 justification will be very important to the outcome wherethe Court is dealing with matters that require close attention to context: at para. 55.[235] I will therefore start my analysis by examining the evidence that was before the Tribunal inrelation to the minimal impairment issue. This primarily took the form of expert evidence fromlabour economists led by Air Canada and the Commission with respect to the justification formandatory retirement. Neither side contested the expertise of the opposing witness in laboureconomics, specifically the economic theory underlying mandatory retirement. ACPA and Messrs.Vilven and Kelly chose not to lead any expert evidence on this issue.