View cases - Stewart McKelvey

treatment is as between workers under the “normal age of retirement” for positions similar, and thoseover that “normal age of retirement”.[260] That is, the effect of paragraph 15(1)(c) of the Canadian Human Rights Act is to denyworkers over the “normal age of retirement” the equal protection and equal benefit of the Act.Paragraph 15(1)(c) allows these individuals’ employment to be terminated solely because of theirage, regardless of their individual circumstances, career aspirations, needs, abilities or merits. Incontrast, individuals who are below the normal age of retirement who lose their jobs for reasonsrelating to their age will have recourse under the Act. This is clearly a distinction based upon anenumerated ground.[261] The next question, then, is whether the age-related distinction contained in paragraph 15(1)(c)of the Canadian Human Rights Act creates a disadvantage by perpetuating prejudice or stereotyping.(c) Does the age-related distinction contained in paragraph 15(1)(c) of the CHRA create adisadvantage by perpetuating prejudice or stereotyping?2009 FC 367 (CanLII)[262] As the Supreme Court observed in Kapp, Andrews teaches that the question to be asked atthis stage in the inquiry is “[d]oes the distinction create a disadvantage by perpetuating prejudice orstereotyping?”: Kapp, at paragraph 17.[263] As was explained earlier, in Law, the Court reformulated this question to require a court toexamine whether the distinction in issue was discriminatory, in the sense of perpetuating orpromoting the view that the claimant was less capable or worthy of recognition or value as a humanbeing or as a member of Canadian society. To this end, courts were directed to focus on whether animpugned law negatively affected a claimant’s “human dignity”. To assist in this analysis, fourcontextual factors were identified as “points of reference”.[264] Kapp teaches that the four Law factors should not be read literally as if they were a legislativetest. Instead, they should be understood as a way to focus on the central concern of subsection 15(1)of the Charter: namely combating discrimination defined in terms of perpetuating disadvantage andstereotyping. That is, the focus is on preventing governments from making distinctions based on theenumerated or analogous grounds that have the effect of perpetuating group disadvantage andprejudice, or that impose disadvantage on the basis of stereotyping.(i) Pre-existing disadvantage suffered by the individual or group[265] In applying the above jurisprudence to the facts of this case, the first of the contextual factorsto be considered is whether the group to which the claimants belong suffers from a pre-existingdisadvantage, vulnerability, stereotyping or prejudice.[266] Citing Gosselin, at paragraph 31, Air Canada points out that age-based distinctions are acommon way of ordering our society, and do not automatically evoke pre-existing disadvantagesuggesting discrimination and marginalization in the way that other enumerated or analogous groundsmay. It bears noting, however, that these comments were made by the Supreme Court in the contextof a statutory age-based distinction that had an adverse differential effect in relation to youngerindividuals.[267] Indeed, the Court went on in Gosselin to observe that age-based section 15 claims typicallyrelate to discrimination against older people “who are presumed to lack abilities that they may in factpossess”: at paragraph 32.[268] Moreover, as the Supreme Court observed in Law, “the most prevalent reason that a givenlegislative provision may be found to infringe s. 15(1) is that it reflects and reinforces existinginaccurate understandings of the merits, capabilities and worth of a particular person or group within