View cases - Stewart McKelvey

Rather, it is the permissive provision in paragraph 15(1)(c) of the Canadian Human Rights Act whichprovides that it is not a discriminatory practice if an individual is required to retire at the normal ageof retirement for positions similar to that occupied by the claimant.(a) The purpose of paragraph 15(1)(c) of the CHRA[243] The Tribunal described the purpose of paragraph 15(1)(c) of the Canadian Human Rights Actas being “to strike a balance between the need for protection against age discrimination and thedesirability of those in the workplace to bargain for and organize their own terms of employment”: atparagraph 98.[244] The Tribunal’s description of the purpose of the provision is accurate, as far as it goes. Amore fulsome description of the purpose of the impugned legislation was provided by the arbitrator inthe CKY-TV case, cited earlier. In this regard, the arbitrator observed [at paragraph 210] that thelegislative objective underlying paragraph 15(1)(c) of the Act “was to protect a longstandingemployment regime.”2009 FC 367 (CanLII)[245] Referring to the comments of Minister Basford cited earlier in these reasons, the arbitratornoted that the Minister had made reference to the “‘many complex social and economic factors’involved in mandatory retirement”, leading the arbitrator to conclude that “[t]he government’s statedpreference was to continue the traditional approach whereby the issue in the private sector wasaddressed between employers and employees”: CKY-TV, at paragraph 210.[246] The arbitrator further held that the objective of paragraph 15(1)(c) of the Act was to allow forthe continuation of a socially desirable employment regime, which included pensions, job security,wages and benefits. This was to be achieved by allowing mandatory retirement “if the age matchedthe predominant age for the position”: CKY-TV, at paragraph 211.[247] It is clear from the statements made by Minister Basford and Assistant Deputy MinisterStrayer at the time that the Canadian Human Rights Act was enacted that paragraph 15(1)(c) of theAct was intended to create an exception to the quasi-constitutional rights otherwise provided by theAct, so as to allow for the negotiation of mandatory retirement arrangements between employers andemployees, particularly through the collective bargaining process.[248] In determining whether paragraph 15(1)(c) of the Act violates subsection 15(1) of theCharter, it is necessary to examine the issue in light of the tests articulated in Andrews and Law,taking into account the comments of the Supreme Court of Canada in Kapp.(b) Does paragraph 15(1)(c) of the CHRA create a distinction based on an enumerated ground?[249] The first stage of the inquiry is to ask whether paragraph 15(1)(c) of the Canadian HumanRights Act creates a distinction based upon an enumerated or analogous ground. As reformulated inLaw, the Court must ask itself whether the impugned law imposes differential treatment between theclaimant and others, in purpose or effect, and whether one or more enumerated or analogous groundsof discrimination are the basis for the differential treatment.[250] In approaching a section 15 claim, the Supreme Court in Law teaches that the determinationof the appropriate comparator, and the evaluation of the contextual factors which determine whetherthe impugned legislation has the effect of demeaning a claimant’s dignity must be conducted from theperspective of the claimant. However, the focus of the discrimination inquiry is both subjective andobjective.[251] That is, the inquiry is subjective “in so far as the right to equal treatment is an individualright, asserted by a specific claimant with particular traits and circumstances”. The inquiry isobjective “in so far as it is possible to determine whether the individual claimant’s equality rights