View cases - Stewart McKelvey

Canadian society, resulting in further stigmatization of that person or the members of the group orotherwise in their unfair treatment”: at paragraph 64.[269] Similarly, in Gosselin, Chief Justice McLachlin stated that “a law that imposes restrictions ordenies benefits on account of presumed or unjustly attributed characteristics is likely to deny essentialhuman worth and to be discriminatory”: at paragraph 37.[270] The Tribunal found that Messrs. Vilven and Kelly were members of a group which itidentified as “older workers”. Supreme Court of Canada jurisprudence has repeatedly recognized thepre-existing disadvantages and stereotyping suffered by this group.[271] By way of example, in addition to the comments of the Supreme Court in Gosselin and Lawquoted above, the Court in McKinney also made reference to “the stereotype of older persons asunproductive, inefficient, and lacking in competence.” Justice Wilson went on in McKinney toobserve that by denying protection to older workers, the Ontario Human Rights Code, 1981 had theeffect of “reinforcing the stereotype that older employees are no longer useful members of the labourforce and their services may therefore be freely and arbitrarily dispensed with”: both quotations frompage 413, Wilson J. dissenting, but not on this point.2009 FC 367 (CanLII)[272] As a consequence, it is clear that older workers, as a group, suffer from a pre-existingdisadvantage, vulnerability, stereotyping or prejudice.[273] The Tribunal [at paragraph 92] had already found that although airline pilots, as pilots, didnot constitute a group which suffered from negative stereotyping or pre-existing disadvantage, themore appropriate question was “whether the complainants, as members of the group of older workerswhose employment has been forcibly terminated, are subject to pre-existing disadvantage or negativestereotyping.”[274] The Tribunal [at paragraph 95] accepted that this was the case, but then went on to find thatthere was “no indication” that either Mr. Vilven or Mr. Kelly personally experienced these agerelateddisadvantages or stereotypes. Not only were they kept fully up-to-date in the latest skills andtechnology required to fly some of the most sophisticated aircraft for a major airline, in addition, afterthe termination of their employment by Air Canada, they were able to secure alternate employmentwith other Canadian airlines that did not have mandatory retirement policies.[275] Two observations may be made in relation to this aspect of the Tribunal’s decision.[276] Firstly, to the extent that the focus of this stage of the analysis is on the group to which theclaimants belong, for the reasons given above it is clear that older workers suffer from a pre-existingdisadvantage, vulnerability, stereotyping or prejudice. Indeed, the Tribunal found that this was thecase.[277] Secondly, it is true that Messrs. Vilven and Kelly’s training may have been kept up-to-datewhile they were at Air Canada, and that they may indeed have been able to obtain alternateemployment as pilots after being forced by the airline to retire (albeit with less favourable workingconditions and compensation). However, one must not lose sight of the fact that even though therewas no concern with respect to either of their individual abilities, skills or capacities, they werenonetheless disadvantaged by being forced to leave positions that they clearly loved, merely becausethey had reached the age of 60.[278] As a consequence, I am satisfied that this consideration weighs in favour of a finding thatparagraph 15(1)(c) of the Canadian Human Rights Act has the effect of perpetuating a groupdisadvantage, suggesting that the provision violates subsection 15(1) of the Charter.